<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 30, 1997
Commission File Number 0-9286
COCA-COLA BOTTLING CO. CONSOLIDATED
(Exact name of registrant as specified in its charter)
Delaware 56-0950585
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1900 Rexford Road, Charlotte, North Carolina 28211
(Address of principal executive offices) (Zip Code)
(704) 551-4400
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at April 26, 1997
Common Stock, $1 Par Value 7,044,985
Class B Common Stock, $1 Par Value 1,319,862
<PAGE>
PART I - FINANCIAL INFORMATION
Item l. Financial Statements
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
In Thousands (Except Share Data)
<TABLE>
<CAPTION>
March 30, Dec. 29, March 31,
1997 1996 1996
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash $ 3,557 $ 2,941 $ 2,479
Accounts receivable, trade, less allowance for
doubtful accounts of $416, $410 and $391 47,193 50,918 9,847
Accounts receivable from The Coca-Cola Company 5,565 2,392 8,167
Due from Piedmont Coca-Cola Bottling Partnership 4,613 5,888 5,156
Accounts receivable, other 7,777 8,216 5,292
Inventories 32,770 30,787 30,935
Prepaid expenses and other current assets 9,645 9,453 6,944
Total current assets 111,120 110,595 68,820
Property, plant and equipment, less accumulated
depreciation of $166,615, $161,615 and $157,341 251,980 190,073 190,582
Investment in Piedmont Coca-Cola Bottling Partnership 63,645 64,462 64,700
Other assets 35,464 33,802 33,861
Identifiable intangible assets, less accumulated
amortization of $97,870, $95,403 and $88,002 238,348 238,115 245,516
Excess of cost over fair value of net assets of
businesses acquired, less accumulated
amortization of $26,842, $26,269 and $24,552 64,777 65,349 67,067
Total $765,334 $702,396 $670,546
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
In Thousands (Except Share Data)
<TABLE>
<CAPTION>
March 30, Dec. 29, March 31,
1997 1996 1996
<S> <C> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Portion of long-term debt payable within one year $ 135 $ 105 $ 120
Accounts payable and accrued liabilities 55,858 56,939 57,820
Accounts payable to The Coca-Cola Company 2,215 3,249 4,425
Accrued compensation 3,060 5,275 2,661
Accrued interest payable 7,521 11,112 5,864
Total current liabilities 68,789 76,680 70,890
Deferred income taxes 107,512 108,403 97,856
Deferred credits 12,540 12,096 9,970
Other liabilities 46,464 43,495 31,871
Long-term debt 529,749 439,453 422,374
Total liabilities 765,054 680,127 632,961
Shareholders' Equity:
Convertible Preferred Stock, $100 par value:
Authorized-50,000 shares; Issued-None
Nonconvertible Preferred Stock, $100 par value:
Authorized-50,000 shares; Issued-None
Preferred Stock, $.01 par value:
Authorized-20,000,000 shares; Issued-None
Common Stock, $1 par value:
Authorized-30,000,000 shares;
Issued-10,107,359, 10,107,359 and 10,090,859 shares 10,107 10,107 10,090
Class B Common Stock, $1 par value:
Authorized-10,000,000 shares;
Issued-1,947,976, 1,947,976 and 1,964,476 shares 1,948 1,948 1,965
Class C Common Stock, $1 par value:
Authorized-20,000,000 shares; Issued-None
Capital in excess of par value 109,347 111,439 118,409
Accumulated deficit (59,764) (59,868) (75,095)
Minimum pension liability adjustment (104) (104) (138)
61,534 63,522 55,231
Less-Treasury stock, at cost:
Common-3,062,374, 2,641,490 and 2,132,800 shares 60,845 40,844 17,237
Class B Common-628,114 shares 409 409 409
Total shareholders' equity 280 22,269 37,585
Total $ 765,334 $ 702,396 $ 670,546
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY (UNAUDITED)
In Thousands
<TABLE>
<CAPTION>
Capital Minimum
Class B in Pension
Common Common Excess of Accumulated Liability Treasury
Stock Stock Par Value Deficit Adjustment Stock
<S> <C> <C> <C> <C> <C> <C>
Balance on
December 31, 1995 $ 10,090 $ 1,965 $120,733 $(76,032) $ (138) $ 17,646
Net income 937
Cash dividends
paid: Common (2,324)
Balance on
March 31, 1996 $ 10,090 $ 1,965 $118,409 $(75,095) $ (138) $ 17,646
Balance on
December 29, 1996 $ 10,107 $ 1,948 $111,439 $(59,868) $ (104) $ 41,253
Net income 104
Cash dividends
paid: Common (2,092)
Purchase of
Common Stock $ 20,001
Balance on
March 30, 1997 $ 10,107 $ 1,948 $109,347 $(59,764) $ (104) $ 61,254
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
In Thousands (Except Per Share Data)
<TABLE>
<CAPTION>
First Quarter
1997 1996
<S> <C> <C>
Net sales (includes sales to Piedmont of $10,591 and
$12,075) $ 178,395 $ 171,996
Cost of sales, excluding depreciation shown below
(includes $8,603 and $10,594 related to sales to Piedmont) 99,450 98,268
Gross margin 78,945 73,728
Selling expenses 44,064 40,726
General and administrative expenses 13,988 12,708
Depreciation expense 8,133 7,007
Amortization of goodwill and intangibles 3,064 3,057
Income from operations 9,696 10,230
Interest expense 9,124 7,693
Other income (expense), net (407) (982)
Income before income taxes 165 1,555
Federal and state income taxes 61 618
Net income $ 104 $ 937
Net income per share $ .01 $ .10
Cash dividends per share:
Common Stock $ .25 $ .25
Class B Common Stock .25 .25
Weighted average number of Common and
Class B Common shares outstanding 8,535 9,294
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Coca-Cola Bottling Co. Consolidated
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
In Thousands
<TABLE>
<CAPTION>
First Quarter
1997 1996
<S> <C> <C>
Cash Flows from Operating Activities
Net income $ 104 $ 937
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation expense 8,133 7,007
Amortization of goodwill and intangibles 3,064 3,057
Deferred income taxes 61 618
Losses on sale of property, plant and equipment 298 311
Amortization of debt costs 141 131
Undistributed losses of Piedmont Coca-Cola Bottling
Partnership 817 924
Increase in current assets less current liabilities (7,799) (8,202)
Increase in other noncurrent assets (1,017) (721)
Increase in other noncurrent liabilities 2,810 2,296
Other 2
Total adjustments 6,508 5,423
Net cash provided by operating activities 6,612 6,360
Cash Flows from Financing Activities
Proceeds from the issuance of long-term debt 90,521 2,884
Payments on long-term debt (226) (405)
Purchase of Common Stock (20,001)
Cash dividends paid (2,092) (2,324)
Other (349) (368)
Net cash provided by (used in) financing activities 67,853 (213)
Cash Flows from Investing Activities
Additions to property, plant and equipment (70,339) (6,123)
Proceeds from the sale of property, plant and equipment 1 21
Acquisition of companies, net of cash acquired (3,511)
Net cash used in investing activities (73,849) (6,102)
Net increase in cash 616 45
Cash at beginning of period 2,941 2,434
Cash at end of period $ 3,557 $ 2,479
</TABLE>
See Accompanying Notes to Consolidated Financial Statements
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
1. Accounting Policies
The consolidated financial statements include the accounts of Coca-Cola Bottling
Co. Consolidated and its majority owned subsidiaries (the "Company"). All
significant intercompany accounts and transactions have been eliminated.
The information contained in the financial statements is unaudited. The
statements reflect all adjustments which, in the opinion of management, are
necessary for a fair statement of the results for the interim periods presented.
All such adjustments are of a normal, recurring nature.
The accounting policies followed in the presentation of interim financial
results are the same as those followed on an annual basis. These policies are
presented in Note 1 to the consolidated financial statements included in the
Company's Annual Report on Form 10-K for the year ended December 29, 1996 filed
with the Securities and Exchange Commission.
Certain prior year amounts have been reclassified to conform to current year
classifications.
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
2. Summarized Income Statement Data of Piedmont Coca-Cola Bottling Partnership
On July 2, 1993, the Company and The Coca-Cola Company formed Piedmont Coca-Cola
Bottling Partnership ("Piedmont") to distribute and market soft drink products
primarily in portions of North Carolina and South Carolina. The Company and The
Coca-Cola Company, through their respective subsidiaries, each beneficially own
a 50% interest in Piedmont. The Company provides a portion of the soft drink
products to Piedmont at cost and receives a fee for managing the business of
Piedmont pursuant to a management agreement. Summarized income statement data
for Piedmont is as follows:
First Quarter
In Thousands 1997 1996
Net sales $ 52,831 $ 47,925
Gross margin 23,728 20,409
Income from operations 1,384 728
Net loss (1,634) (1,849)
3. Inventories
Inventories are summarized as follows:
Mar. 30, Dec. 29, Mar. 31,
In Thousands 1997 1996 1996
Finished products $18,068 $18,888 $19,401
Manufacturing materials 8,824 9,894 10,207
Plastic pallets and other 5,878 2,005 1,327
Total inventories $32,770 $30,787 $30,935
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
4. Long-Term Debt
Long-term debt is summarized as follows:
<TABLE>
<CAPTION>
Fixed(F) or
Interest Variable Interest Mar. 30, Dec. 29, Mar. 31,
In Thousands Maturity Rate (V) Rate Paid 1997 1996 1996
<S> <C> <C> <C> <C> <C> <C> <C>
Lines of Credit 2001 5.78% - V Varies $134,250 $ 19,720 $ 25,490
6.02%
Revolving Credit 24,000
Term Loan Agreement 2002- 6.20% V Varies 170,000 170,000 170,000
2003
Medium-Term Notes 1998 6.18% V Quarterly 10,000 10,000 10,000
Medium-Term Notes 1998 10.05% F Semi- 2,000 2,000 2,000
annually
Medium-Term Notes 1999 7.99% F Semi- 28,585 28,585 28,585
annually
Medium-Term Notes 2000 10.00% F Semi- 25,500 25,500 25,500
annually
Medium-Term Notes 2002 8.56% F Semi- 47,000 47,000 47,000
annually
Debentures 2007 6.85% F Semi- 100,000 100,000 100,000
annually
Other notes payable 2000 - 6.85% - F Varies 12,549 12,753 13,919
2001 10.00%
529,884 439,558 422,494
Less: Portion of long-
term debt payable
within one year 135 105 120
Long-term debt $529,749 $439,453 $422,374
</TABLE>
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
4. Long-Term Debt (cont.)
It is the Company's intent to renew its lines of credit and borrowings under
the revolving credit facility as they mature. To the extent that these
borrowings do not exceed the amount available under the Company's $170
million revolving credit facility, they are classified as noncurrent
liabilities.
The Company previously had an arrangement under which it had the right to
sell an undivided interest in a designated pool of trade accounts receivable
up to a maximum of $40 million. This arrangement was suspended in the fourth
quarter of 1996. The Company had sold trade accounts receivable of $35
million as of March 31, 1996 under this arrangement.
On October 12, 1994, a $400 million shelf registration for debt and equity
securities filed with the Securities and Exchange Commission became
effective and the securities thereunder became available for issuance. On
November 1, 1995, the Company issued $100 million of 6.85% debentures due
2007 pursuant to such registration. The net proceeds from this issuance were
used principally for refinancing a portion of existing public indebtedness
with the remainder used to repay other bank debt.
On November 20, 1995, the Company entered into a $170 million term loan
agreement with $85 million maturing in November 2002 and $85 million
maturing in November 2003. This loan was used to repay two $60 million loans
previously entered into by the Company and other bank debt.
The Company has guaranteed a portion of the debt for two cooperatives in
which the Company is a member. The amounts guaranteed were $31.8 million,
$32.2 million and $34.6 million as of March 30, 1997, December 29, 1996 and
March 31, 1996, respectively.
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
5. Derivative Financial Instruments
The Company uses derivative financial instruments to modify risk from
interest rate fluctuations in its underlying debt. The Company has
historically altered its fixed/floating interest rate mix based upon
anticipated operating cash flows of the Company relative to its debt level
and the Company's ability to absorb increases in interest rates. These
derivative financial instruments are not used for trading purposes.
The Company had weighted average interest rates for its debt portfolio of
approximately 6.9%, 7.2% and 7.0% as of March 30, 1997, December 29, 1996
and March 31, 1996, respectively. The Company's overall weighted average
interest rate on its long-term debt decreased from an average of 7.0% during
the first quarter of 1996 to an average of 6.9% during the first quarter of
1997. After taking into account the effect of all of the interest rate swap
activities, approximately 59%, 51% and 49% of the total debt portfolio was
subject to changes in short-term interest rates as of March 30, 1997,
December 29, 1996 and March 31, 1996, respectively.
A rate increase of 1% on the floating rate component of the Company's debt
would have increased interest expense for the first quarter of 1997 by
approximately $.8 million and net income for the first quarter ended March
30, 1997 would have been reduced by approximately $.5 million.
The Company currently has two interest rate swap agreements. There were no
new derivative financial instruments, nor activity with current financial
instruments, during the first quarter of 1997.
Derivative financial instruments were as follows:
<TABLE>
<CAPTION>
March 30, 1997 December 29, 1996 March 31, 1996
Remaining Remaining Remaining
In Thousands Amount Term Amount Term Amount Term
<S> <C> <C> <C> <C> <C> <C>
Interest rate swaps-floating $60,000 6.5 years $60,000 6.75 years $60,000 7.5 years
Interest rate swaps-fixed 60,000 6.5 years 60,000 6.75 years 60,000 7.5 years
</TABLE>
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
5. Derivative Financial Instruments (cont.)
The carrying amounts and fair values of the Company's balance sheet and
off-balance-sheet instruments were as follows:
<TABLE>
<CAPTION>
March 30, 1997 March 31, 1996
Carrying Fair Carrying Fair
In Thousands Amount Value Amount Value
<S> <C> <C> <C> <C>
Balance Sheet Instruments
Public debt $ 213,085 $ 213,908 $ 213,085 $ 215,757
Non-public variable rate long-term
debt 304,250 304,250 195,490 195,490
Non-public fixed rate long-term debt 12,549 13,141 13,919 14,899
Off-Balance-Sheet Instruments
Interest rate swaps (3,879) (4,843)
</TABLE>
The fair values of the interest rate swaps represent the estimated amounts the
Company would have had to pay to terminate these agreements.
<PAGE>
Coca-Cola Bottling Co. Consolidated
Notes to Consolidated Financial Statements (Unaudited)
6. Supplemental Disclosures of Cash Flow Information
Changes in current assets and current liabilities affecting cash were as
follows:
<TABLE>
<CAPTION>
First Quarter
In Thousands 1997 1996
<S> <C> <C>
Accounts receivable, trade, net $ 3,725 $ 2,251
Accounts receivable, The Coca-Cola Company (3,173) (1,443)
Due from Piedmont Coca-Cola Bottling Partnership 1,275 (572)
Accounts receivable, other 439 4,201
Inventories (1,983) (2,946)
Prepaid expenses and other current assets (192) (9)
Portion of long-term debt payable within one year 30
Accounts payable and accrued liabilities (1,081) (6,929)
Accounts payable, The Coca-Cola Company (1,034) 789
Accrued compensation (2,214) (2,388)
Accrued interest payable (3,591) (1,156)
Increase in current assets less current liabilities $(7,799) $(8,202)
</TABLE>
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Introduction:
The following discussion presents management's analysis of the results of
operations for the first three months of 1997 compared to the first three months
of 1996 and changes in financial condition from March 31, 1996 and December 29,
1996 to March 30, 1997.
The Company reported net income of $104,000 or $.01 per share for the first
quarter of 1997 compared with net income of $.9 million or $.10 per share for
the same period in 1996. The decrease in earnings from the prior year was
primarily due to increased interest expense related to higher levels of
long-term debt. The higher debt level is due to new borrowings related to Common
Stock repurchases, a purchase of vending assets previously leased and the
suspension of the Company's program to sell its trade accounts receivable.
Interest expense increased by approximately $1.4 million in the first quarter of
1997 over the same period in 1996.
In March 1997, the Financial Accounting Standards Board issued SFAS No. 128,
Earnings per Share. SFAS 128 established standards for computing and presenting
earnings per share and applies to entities with publicly held common stock. This
statement is effective for fiscal years ending after December 15, 1997 and early
adoption is not permitted. The Company will adopt the provisions of SFAS 128 for
its fiscal year ending December 28, 1997. The Company believes that adoption of
the provisions of this statement will not have a material effect on its
financial statements.
The results for interim periods are not necessarily indicative of the results to
be expected for the year due to seasonal factors.
Results of Operations:
The first quarter was highlighted by strong volume growth across the Company's
core brands, which include Coca-Cola classic, diet Coke and Sprite. Franchise
net sales increased approximately 6% over the same period in 1996 due primarily
to a 9% increase in case volume offset by lower net selling prices. Franchise
net selling price per unit for the quarter decreased by 2.9%. The sales volume
increase was broad-based across most of the Company's key channels. In addition,
the Company posted a 20% increase in fountain volume.
Sprite continued to be the volume growth leader with an increase in volume of
26% over the first quarter of 1996. Gross margin on franchise net sales
increased by 7% from 1996. Gross margin was up more than the increase in
franchise net sales due to a reduction in cost of sales per unit as a result of
lower costs for sweetener and certain packaging materials.
Selling expenses for the first quarter of 1997 increased 8.2% over the first
quarter of 1996. Selling expenses increased due to higher sales commission costs
related to the sales volume increase, increased marketing costs and increased
expenses related to sales development programs.
<PAGE>
The increase in sales development funds was related primarily to growth in food
store volume. The higher employment costs are attributable to increased sales
commission costs as well as the Company's ongoing efforts to improve employee
retention in certain key market areas of its franchise territory. General and
administrative expenses increased by 10% primarily due to increases in
employment costs and professional fees incurred during the first quarter. The
rate of increase in general and administrative expenses experienced during the
first quarter of 1997 is not expected to continue throughout 1997.
Depreciation expense increased 16% between the first quarter of 1996 and the
first quarter of 1997. This increase was due primarily to depreciation expense
on vending equipment that was previously leased. The Company purchased $66.3
million of vending equipment in January 1997 which was previously leased. As a
result of this transaction, lease expense declined by 11% for the first quarter.
Depreciation expense is recognized on a straight-line basis throughout the year
while the revenue generated by these assets tends to be more seasonal, with the
majority of the revenue coming in the months from April to September.
Interest expense increased 19% from the first quarter of 1996 to the first
quarter of 1997 due to several transactions that increased outstanding long-term
debt by $107.4 million from March 31, 1996 to March 30, 1997. The Company
repurchased approximately 930,000 shares of its Common Stock in three separate
transactions between December 1996 and February 1997 for $43.6 million. The
Company purchased vending equipment, previously leased, for $66.3 million during
January 1997. Additionally, the Company suspended its arrangement to sell its
trade accounts receivable during the fourth quarter of 1996. As of March 31,
1996 the Company had sold $35 million of its trade accounts receivable under
this program. The Company's overall weighted average interest rate decreased
from an average of 7.0% during the first quarter of 1996 to an average of 6.9%
during the first quarter of 1997.
Changes in Financial Condition:
Working capital increased $8.4 million from December 31, 1996 and increased
$44.4 million from March 31, 1996 to March 31, 1997. The increase from
December 31, 1996 resulted principally from decreases in various current
liabilities including a decrease in accrued interest payable of $3.6 million.
The increase from March 31, 1996 was due principally to an increase in trade
accounts receivable of $37.3 million. The Company had sold trade accounts
receivable of $35 million as of March 31, 1996 under an arrangement to sell up
to $40 million of its trade accounts receivable. The trade accounts receivable
sales agreement was suspended during the fourth quarter of 1996 and no trade
accounts receivable had been sold as of December 29, 1996 or March 30, 1997.
Capital expenditures in the first quarter of 1997, excluding the $66.3 million
purchase of previously leased equipment, were $4.0 million as compared to
$6.1 million in the first quarter of 1996.
The Company entered into an agreement in April 1997 that will currently provide
up to $61 million for the leasing of equipment. This agreement has a favorable
cost structure and will be used to obtain the majority of the Company's capital
requirements for fleet and vending assets in 1997.
<PAGE>
Long-term debt increased by $107.4 million from March 31, 1996 and increased by
$90.3 million from December 29, 1996. The increase in long-term debt is due to
the repurchase of approximately 930,000 shares of the Company's Common Stock
during December 1996 and the first quarter of 1997 for $43.6 million, the
purchase of $66.3 million of vending equipment previously leased and the
suspension of the arrangement to sell its trade accounts receivable. The Company
used its informal lines of credit for the additional borrowings.
It is the Company's intent to renew any borrowings under its $170 million
revolving credit facility and the informal lines of credit as they mature and,
to the extent that any borrowings under the revolving credit facility and the
informal lines of credit do not exceed the amount available under the Company's
$170 million revolving credit facility, they are classified as noncurrent
liabilities. As of March 30, 1997, the Company had no amounts outstanding under
the revolving credit facility and $134.3 million outstanding under the informal
lines of credit.
As of March 30, 1997 the debt portfolio had a weighted average interest rate of
approximately 6.9% and approximately 59% of the total debt portfolio of $529.8
million was subject to changes in short-term interest rates.
The Company repurchased approximately 930,000 shares of its Common Stock in
three separate transactions during December 1996 and the first quarter of 1997.
The aggregate cost of these share repurchases was $43.6 million. Management of
the Company believes that the repurchase of these shares will further the goal
of enhancing long-term shareholder value.
Management believes that the Company, through the generation of cash flow from
operations and the utilization of unused borrowing capacity, has sufficient
financial resources available to maintain its current operations and provide for
its current capital expenditure requirements. The Company considers the
acquisition of additional franchise territories on an ongoing basis.
<PAGE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
10.1 Participation Agreement (Coca-Cola Trust No. 97-1) dated as of April 10, 1997 between
the Company (as Lessee), First Security Bank, National Association (solely as Owner
Trustee under Coca-Cola Trust No. 97-1) and the other financial institutions listed
therein.
10.2 Master Equipment Lease Agreement (Coca-Cola Trust No. 97-1) dated as of April 10, 1997
between the Company (as Lessee) and First Security Bank, National Association (solely
as Owner Trustee under Coca-Cola Trust No. 97-1).
27 Financial data schedule for period ended March 30, 1997.
</TABLE>
(b) Reports on Form 8-K
Current Report on Form 8-K dated as of January 7, 1997 related to the
repurchase of 145,260 shares of the Company's Common Stock from a
single shareholder.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
COCA-COLA BOTTLING CO. CONSOLIDATED
(REGISTRANT)
Date: May 14, 1997 By: /s/ David V. Singer
David V. Singer
Principal Financial Officer of the Registrant
and
Vice President - Chief Financial Officer
<PAGE>
- --------------------------------------------------------------------------------
PARTICIPATION AGREEMENT
(Coca-Cola Trust No. 97-1)
Dated as of April 10, 1997
among
COCA-COLA BOTTLING CO. CONSOLIDATED,
as the Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity except as expressly provided herein,
but solely as Owner Trustee under Coca-Cola Trust No. 97-1,
NATIONSBANC LEASING CORPORATION OF NORTH CAROLINA
and
SUNTRUST BANK, ATLANTA,
as Holders,
ENTERPRISE FUNDING CORPORATION,
as Initial Lender,
NATIONSBANK, N.A.,
as Agent,
and
NATIONSBANK, N.A.
and certain other financial institutions from time to time parties hereto,
as Bank Lenders
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1. DEFINITIONS; INTERPRETATION OF THIS AGREEMENT/INITIAL LENDER/LENDERS............................2
1.1 Definitions............................................................................2
1.2 Directly or Indirectly.................................................................2
1.3 Initial Lender/Lenders.................................................................2
SECTION 2. SALE AND PURCHASE; PARTICIPATION IN THE EQUIPMENT COST; CLOSING; TRANSACTION COSTS..............3
2.1 Sale and Purchase......................................................................3
2.2 Participation in Equipment Cost........................................................3
2.3 Closing Date; Acceptance Dates; Procedure for Participation............................4
2.4 Holders' Instructions to the Owner Trustee; Satisfaction
of Conditions..........................................................................6
2.5 Expenses; Fees.........................................................................7
2.6 Postponement of Acceptance Date........................................................8
2.7 Conclusion of Interest Periods and Payment Periods on Interim
Term Expiration Date...................................................................9
2.8 Conversion and Continuation Options....................................................9
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................................10
3.1 Representations and Warranties of the Owner Trustee...................................10
3.2 Representations and Warranties of the Lessee as of the
Closing Date..........................................................................12
3.3 Representations and Warranties of the Lessee as of
Each Acceptance Date..................................................................15
SECTION 4. CLOSING CONDITIONS.............................................................................17
4.1 Conditions Precedent to the Obligations of Parties other
than the Lessee on the Closing Date...................................................17
4.2 Conditions Precedent to the Obligations of the Parties other
than the Lessee on each Acceptance Date...............................................19
4.3 Conditions Precedent to the Obligation of the
Lessee on the Closing Date............................................................22
4.4 Conditions Precedent to the Obligations of the Lessee
on each Acceptance Date...............................................................23
SECTION 5. COVENANTS OF THE LESSEE........................................................................24
5.1 Financial and Other Reports of the Lessee.............................................24
5.2 Incorporation of Provisions from Credit Agreement.....................................25
5.3 Change of Chief Executive Office......................................................26
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5.4 Lien Searches.........................................................................26
5.5 Classification of Equipment...........................................................26
5.6 Notice Regarding Places of Business and Re-location
of Equipment..........................................................................27
5.7 Lien Perfection Filings - Initial Acceptance Date.....................................27
5.8 Allocation of Equipment Cost among the Approved States................................27
5.9 UCC Filing at Basic Term Commencement Date............................................27
SECTION 6. OTHER COVENANTS AND AGREEMENTS.................................................................28
6.1 Restrictions on Transfer..............................................................28
6.2 Lessor's Liens Attributable to the Holders............................................29
6.3 Lessor's Liens Attributable to the Owner Trustee......................................30
6.4 Liens Created by the Lenders..........................................................30
6.5 Liens Created by the Agent............................................................31
6.6 Covenants Restricting the Owner Trustee...............................................31
6.7 Covenants of All Parties Regarding Operative Agreements..............................32
6.8 Rent Sufficiency......................................................................32
6.9 Receipt, Distribution and Application of Income.......................................33
6.10 Acceleration Upon Certain Events of Default...........................................36
SECTION 7. LESSEE'S INDEMNITIES...........................................................................36
7.1 General Tax Indemnity.................................................................36
7.2 General Indemnification and Waiver of Certain Claims..................................39
SECTION 8. BANK LENDER ASSIGNMENT.........................................................................41
8.1 Bank Assignment.......................................................................41
8.2 Purchase Price........................................................................44
8.3 Bank Lender Renewal...................................................................45
8.4 Downgrade of Bank Lender..............................................................46
8.5 Funding of Bank Assignment and Term Commitment........................................46
SECTION 9. YIELD PROTECTION; TAXES; COMPENSATION..........................................................47
9.1 Yield Protection Provisions...........................................................47
9.2 Taxes.................................................................................49
9.3 Compensation..........................................................................51
SECTION 10. MISCELLANEOUS..................................................................................52
10.1 Consents..............................................................................52
10.2 Appointment of Agent..................................................................52
10.3 Notices...............................................................................52
10.4 Successors and Assigns................................................................54
10.5 Governing Law; Submission To Jurisdiction.............................................54
10.6 Severability..........................................................................55
10.7 Counterparts..........................................................................55
10.8 The Lessee's Right to Quiet Enjoyment.................................................55
10.9 Limitations of Liability..............................................................56
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10.10 Confidentiality.......................................................................56
10.11 Survival of Indemnities...............................................................57
10.12 No Recourse Against Stockholders, Officers or Directors...............................57
10.13 No Bankruptcy Petition Against the Initial Lender.....................................57
10.14 Majority in Interest of Noteholders...................................................57
10.15 Compliance Certificate................................................................58
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EXHIBITS
Exhibit A - Form of Purchase Agreement Assignment
Exhibit B - Form of Notice of Delivery
Exhibit C - Form of Certificate of Acceptance
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Assumption Agreement
Exhibit F - Form of Notice of Request for Renewal
SCHEDULES
Schedule 1 - Participant's Funding Percentages
Schedule 2 - Debt Percentage; Equity Percentage
Schedule 3 - Environmental Disclosure
APPENDIX A - Definitions
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PARTICIPATION AGREEMENT
Coca-Cola Trust No. 97-1
THIS PARTICIPATION AGREEMENT (Coca-Cola Trust No. 97-1) dated as of
April 10, 1997 (as amended, modified, supplemented, restated and/or replaced
from time to time, the "Agreement"), is among (i) COCA-COLA BOTTLING CO.
CONSOLIDATED, a corporation organized and existing under the Laws of Delaware
(herein, together with its successors and assigns permitted hereunder, called
the "Lessee"), (ii) FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association ("First Security"), not in its individual capacity except as
expressly provided herein, but solely as Owner Trustee under Coca-Cola Trust No.
97-1 (herein in such capacity, together with its successors and assigns
permitted hereunder, called the "Owner Trustee"), (iii) NATIONSBANC LEASING
CORPORATION OF NORTH CAROLINA, a corporation organized and existing under the
Laws of North Carolina, and SUNTRUST BANK, ATLANTA, a banking corporation
organized and existing under the Laws of Georgia (each herein in such capacity,
together with its successors and assigns permitted hereunder, called a "Holder"
and collectively, the "Holders"), (iv) ENTERPRISE FUNDING CORPORATION, a
corporation organized and existing under the Laws of Delaware (herein in such
capacity, called the "Initial Lender" and together with its successors and
assigns permitted hereunder, called the "Lenders"), (v) NATIONSBANK, N.A., a
national banking association ("NationsBank"), as collateral agent and
administrative agent for the Lenders and the Holders, and administrative agent
for the Bank Lenders (herein in such capacities, together with its successors
and assigns permitted hereunder, the "Agent") and (vi) NATIONSBANK and certain
other financial institutions from time to time parties hereto (each herein in
such capacity, together with its successors and assigns permitted hereunder,
called a "Bank Lender" and collectively, the "Bank Lenders").
W I T N E S S E T H :
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Holders have entered into that certain Trust Agreement (Coca-Cola
Trust No. 97-1) dated as of the date hereof (as amended, modified, supplemented,
restated and/or replaced from time to time, the "Trust Agreement") with the
Owner Trustee pursuant to which the Owner Trustee agrees, among other things,
(a) to hold the Trust Estate for the benefit of the Holders thereunder on the
terms specified in the Trust Agreement and (b) subject to the terms and
conditions hereof, to purchase the Equipment from each applicable Seller and
concurrently therewith lease such Equipment to the Lessee;
WHEREAS, pursuant to the terms of the Trust Agreement, the Owner
Trustee is authorized and directed by the Holders (a) to execute and deliver
from time to time Purchase Agreement Assignments (substantially in the form of
Exhibit A hereto) with the Lessee, whereby the Lessee assigns to the Owner
Trustee all the Lessee's rights and interests (excluding its obligations
thereunder other than its obligation to purchase the Equipment pursuant to this
Agreement) under each applicable Purchase Agreement to the extent that the same
relate to the Equipment, including without limitation the right to receive title
to the Equipment from the applicable Seller, (b) to accept delivery from time to
time of any and all title transfer documents evidencing the purchase of each
Unit by the Owner Trustee and (c) to execute and deliver the
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Lease relating to the Equipment pursuant to which the Owner Trustee agrees to
lease to the Lessee, and the Lessee agrees to lease from the Owner Trustee, each
Unit to be delivered on the applicable Acceptance Date, such lease of Equipment
to be evidenced by the execution and delivery of a Lease Supplement to the
Lease;
WHEREAS, concurrently with the execution and delivery of this
Agreement, the Owner Trustee has entered into the Loan Agreement with the
Initial Lender pursuant to which the Owner Trustee agrees, among other things,
to issue the Notes to the Lenders as evidence of the Owner Trustee's
indebtedness, which Notes are to be secured by, among other things, the
Equipment and certain of the Lessee's obligations under the Lease;
WHEREAS, pursuant to the terms of this Agreement, the Bank Lenders have
agreed to accept an assignment of the Notes from the Initial Lender upon the
occurrence of certain events and thereafter the Bank Lenders shall be deemed
Lenders; and
WHEREAS, the proceeds from the Loans will be applied, together with the
equity contributions made by the Holders pursuant to this Agreement and the
Trust Agreement, to effect the purchase of the Equipment by the Owner Trustee
contemplated hereby.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION OF THIS AGREEMENT/INITIAL LENDER/LENDERS
1.1 Definitions.
The capitalized terms used in this Agreement (including the foregoing
recitals) and not otherwise defined herein shall have the respective meanings
specified in Appendix A hereto, unless the context hereof shall otherwise
require. The "General Provisions" of Appendix A hereto are hereby incorporated
by reference herein.
1.2 Directly or Indirectly.
Where any provision in this Agreement refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly by such
Person.
1.3 Initial Lender/Lenders.
Until such time as the Bank Lenders become holders of the Notes, the
Initial Lender shall fund Loans to the Owner Trustee. From and after the time
the Bank Lenders become holders of the Notes, the Bank Lenders shall be deemed
to be the Lenders and shall fund Loans to the Owner Trustee.
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SECTION 2. SALE AND PURCHASE; PARTICIPATION IN THE EQUIPMENT COST; CLOSING;
TRANSACTION COSTS
2.1 Sale and Purchase.
The Lessee shall designate the date for Loans and Holder Advances
hereunder in accordance with the terms hereof; provided, it is understood and
agreed that (a) no more than two Loans per Class of Equipment and two Holder
Advances per Class of Equipment may be requested during any calendar month, (b)
in the event the LIBOR Rate shall apply to the Loans, not more than four such
Loans per Class of Equipment may be based on the LIBOR Rate, (c) not more than
four such Holder Advances per Class of Equipment may be based on the LIBOR Rate,
(d) no such Loan and/or Holder Advance shall be made subsequent to the Interim
Term Expiration Date and (e) the aggregate amount of Loans and Holder Advances
requested by the Lessee on each applicable Acceptance Date shall in each case be
in an amount of $300,000 or more. Subject to the terms and conditions hereof and
on the basis of the representations and warranties set forth herein, the Owner
Trustee agrees to purchase from the applicable Seller on the applicable
Acceptance Date the Units of such Seller referred to in the notice given
pursuant to Section 2.3(b) and more particularly described in the applicable
Notice of Delivery, and in connection therewith, the Owner Trustee agrees to pay
to such Seller the cost for each such Unit as specified in the Notice of
Delivery therefor; provided, however, that the Owner Trustee shall not be
obligated to purchase on any Acceptance Date any Unit that is destroyed,
damaged, defective, in unsuitable condition or otherwise unacceptable to the
Lessee for lease pursuant to the Lease. Each Seller shall deliver its respective
Units to the Owner Trustee (or its designee) and the Owner Trustee (or its
designee) shall accept such delivery of all the Equipment on a delivery date not
later than January 14, 1998.
2.2 Participation in Equipment Cost.
(a) Subject to the terms and conditions hereof and on the
basis of the representations and warranties set forth herein, on each applicable
Acceptance Date, each Holder agrees to participate in the payment of the
Equipment Cost for the Units delivered on such Acceptance Date by making a
Holder Advance to the Owner Trustee (payable to the Agent for the benefit of the
Owner Trustee) in an amount equal to the product of the Equity Percentage of the
aggregate Equipment Cost for the Units delivered on such Acceptance Date and the
percentage set forth opposite such Holder's name for the particular Class of
Equipment in Schedule 1 (the aggregate amount of such Holder Advances from all
Holders for all Classes of Equipment being referred to herein as the "Aggregate
Holder Funded Amount"). The portion of the Aggregate Holder Funded Amount for
each Class of Equipment shall not exceed the aggregate Holder Class Commitment
for such Class of Equipment. The Lessee shall not request a Holder Advance
pursuant to a Notice of Delivery or otherwise (and no Holder shall have an
obligation to make) any Holder Advance regarding any Class of Equipment in
excess of the Holder Class Commitment for such Holder. Each Holder shall pay its
respective portion of the Aggregate Holder Funded Amount required on each
applicable Acceptance Date to the Agent to be held and applied by the Agent
toward the payment of the Equipment Cost for the Units accepted on such
Acceptance Date as provided in Section 2.3.
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(b) Subject to the terms and conditions hereof and on the
basis of the representations and warranties set forth herein, on each applicable
Acceptance Date, the Initial Lender may participate (or in the event the Initial
Lender elects not to so participate, the Bank Lenders hereby agree that each of
them shall so participate) in the payment of the Equipment Cost for the Units
delivered on such Acceptance Date by making a Loan to the Owner Trustee (payable
to the Agent for the benefit of the Owner Trustee) in an amount equal to the
product of the Debt Percentage of the aggregate Equipment Cost for the Units
delivered on such Acceptance Date and the percentage set forth opposite such
Lender's name for such Class of Equipment in Schedule 1 (the "Aggregate Lender
Funded Amount"). The portion of the Aggregate Lender Funded Amount for each
Class of Equipment shall not exceed the aggregate Lender Class Commitment for
such Class of Equipment. The Lessee shall not request a Loan pursuant to a
Notice of Delivery or otherwise (and no Lender shall have an obligation to make)
any Loan regarding any Class of Equipment in excess of the Lender Class
Commitment for such Lender. Each Lender shall pay its respective portion of the
Aggregate Lender Funded Amount required on each applicable Acceptance Date to
the Agent to be held and applied by the Agent toward the payment of the
Equipment Cost for the Units accepted on such Acceptance Date as provided in
Section 2.3.
2.3 Closing Date; Acceptance Dates; Procedure for Participation.
(a) All documents and instruments required to be
delivered on the Closing Date shall be delivered on or prior to such date at the
office of Moore & Van Allen, PLLC, 100 North Tryon Street, Floor 47, Charlotte,
North Carolina 28202-4003 or at such other location as may be determined by the
Owner Trustee, the Agent and the Lessee.
(b) Not later than 11:00 A.M., Eastern time, on the third
Business Day preceding each applicable Acceptance Date, the Lessee shall give
the Agent notice on behalf of the Owner Trustee, the Holders, the Lenders and
the Bank Lenders (a "Notice of Delivery") by facsimile or other form of
telecommunication or telephone (to be promptly confirmed in writing) of such
Acceptance Date, which Notice of Delivery shall be in the form attached as
Exhibit B. Election of the interest rate for Loans and the basis for yield
calculation for Holder Advances shall be subject to Section 2.3(d). Not later
than 3:00 P.M. Eastern time, on each Business Day the Agent receives a Notice of
Delivery from the Lessee, the Agent shall deliver to the Holders, the Owner
Trustee and the Lenders a copy thereof by facsimile or other form of
telecommunication or telephone (to be promptly confirmed in writing). Prior to
11:00 A.M., Eastern time, on each applicable Acceptance Date, each Holder shall
make its respective portion of the Aggregate Holder Funded Amount required to be
paid on such Acceptance Date available to the Agent, and each Lender shall make
its respective portion of the Aggregate Lender Funded Amount for the Equipment
Cost required to be paid on such Acceptance Date available to the Agent, in each
case, by transferring or delivering such amounts, in funds immediately available
on such Acceptance Date, to the Agent. The making available by a Holder or a
Lender of its respective portion of the Aggregate Holder Funded Amount or
Aggregate Lender Funded Amount for the Equipment Cost, as the case may be, shall
be deemed a waiver of the Notice of Delivery by such Holder or Lender. To the
extent the Agent receives all such amounts of the Aggregate Holder Funded Amount
and the Aggregate Lender Funded Amount by the appointed time, the Owner Trustee
and the Agent shall be deemed to have waived the requirement for a Notice of
Delivery.
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(c) Upon receipt by the Agent on each applicable
Acceptance Date of the full amount of the Aggregate Holder Funded Amount and the
Aggregate Lender Funded Amount in respect of the Units delivered on such
Acceptance Date, the Agent on behalf of the Owner Trustee shall, subject to the
conditions set forth in Section 4 having been fulfilled to the satisfaction of
the Owner Trustee, the Holders, the Lenders and the Agent or waived by such
parties as appropriate, pay to the applicable Seller from the funds then held by
the Agent, in immediately available funds, an amount equal to the Equipment Cost
for the Units delivered by the applicable Seller on such Acceptance Date, and
simultaneously therewith, (i) the Lessee, individually and as authorized
representative of the Owner Trustee (the making available by each Holder of its
respective portion of the Aggregate Holder Funded Amount to be paid on such
Acceptance Date shall constitute an agreement to permit the Lessee to act as the
authorized representative of the Owner Trustee), shall confirm acceptance of
such Units from the applicable Seller for all purposes as among the Owner
Trustee and the Lessee (except that there shall not be any waiver of claims by
any Person as against the applicable Seller as a result thereof), such
confirmation to be conclusively evidenced by the execution and delivery by the
Lessee or its authorized representative of a Certificate of Acceptance in the
form attached hereto as Exhibit C (a "Certificate of Acceptance"), (ii) the
Lessee shall cause to be delivered the Purchase Agreement Assignment, if any
(provided, the failure to deliver a Purchase Agreement Assignment shall without
further action be deemed a representation and warranty by the Lessee that no
Purchase Agreement exists and that the Lessee is not a party to or a beneficiary
of any agreement or document providing representations, warranties or
indemnities from the applicable Seller regarding such Units), and title transfer
documents which are legally sufficient to evidence the purchase and the transfer
of good and marketable legal title in the Units to the Owner Trustee and (iii)
the Owner Trustee shall, pursuant to the Lease, lease the Units delivered on
such Acceptance Date to the Lessee, and the Lessee, pursuant to the Lease, shall
accept delivery of the Units under the Lease (such lease, delivery and
acceptance of the Units under the Lease being conclusively evidenced by the
execution and delivery by the Lessee and the Owner Trustee of a Lease Supplement
to the Lease concerning such Units so delivered). Each of the Lessee, the
Holders, the Owner Trustee, the Lenders and the Agent hereby agree to take all
actions required to be taken by such party in connection therewith and pursuant
to this Section 2.3(c).
(d)(i) While the Initial Lender is the Lender, the interest rate
applicable to each Loan shall be the CP Rate; provided, the Lessee (on behalf of
the Owner Trustee) shall have the option to select the Interest Period
applicable to each Loan bearing interest at the CP Rate by specifying the
duration of the Interest Period in the related Notice of Delivery. Subsequent to
any time at which the Initial Lender is no longer the Lender (with respect to
the Loans) and at any time (with respect to the Holder Advances), the Lessee (on
behalf of the Owner Trustee) shall have the option to select the interest rate
and Interest Period applicable to each Loan and the basis for yield calculation
and Payment Period applicable to each Holder Advance, in each case by specifying
the foregoing in the related Notice of Delivery. Collectively, the foregoing
options for election by the Lessee in each Notice of Delivery may be referred to
as the "Notice of Delivery Elections". If the Lessee does not elect any Notice
of Delivery Elections in the applicable Notice of Delivery, then the parties
hereto agree that the Agent shall have the right to select such Notice of
Delivery Elections; provided, that the Agent shall notify the Lessee by
facsimile or by telephone (to be promptly confirmed by facsimile) by not later
than 2:30 P.M. Eastern Time on the Business Day following the Agent's receipt of
such Notice of Delivery, of each Notice of Delivery Election selected by the
Agent for such Loan or Holder Advance, as the case may be.
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(ii) Notwithstanding the foregoing, for so long as the underlying
interest rate used to establish the discount on Commercial Paper (the
"Underlying CP Rate") equals or exceeds 7.5% per annum, the Agent shall have the
sole right to select the Interest Period applicable to any Loan bearing interest
at the CP Rate. In the event that on any date on which the Underlying CP Rate
equals or exceeds 7.5% per annum, the Agent receives a Notice of Delivery
related to a Loan bearing interest at the CP Rate and the Interest Period
specified by the Lessee therein is of a longer duration than the Interest Period
which the Agent would otherwise have selected for such Loan, then the Agent
shall select the Interest Period for such Loan and shall notify the Lessee in
writing by facsimile or by telephone (to be promptly confirmed in writing) not
later than 2:30 P.M. Eastern Time on the Business Day following the Agent's
receipt of the Notice of Delivery, of the Agent's intention to select an
alternative Interest Period and shall inform the Lessee of its reasons for
selecting such Interest Period. On the related Acceptance Date, the Agent shall
inform the Lessee of the duration of the Interest Period selected by the Agent
for such Loan. The Agent shall deliver a copy of any notice delivered to the
Lessee pursuant to this Section 2.3(d) to the Holders, the Owner Trustee and the
Lenders simultaneously with the delivery of such notice to the Lessee.
2.4 Holders' Instructions to the Owner Trustee; Satisfaction
of Conditions.
(a) Each Holder agrees that the making available to the
Agent of its respective portion of the Aggregate Holder Funded Amount for the
Units delivered on each applicable Acceptance Date in accordance with the terms
of this Section 2 shall constitute the direction of such Holder to the Owner
Trustee, without further act, authorization and direction by such Holder to the
Owner Trustee, subject, on such Acceptance Date, to the conditions set forth in
Section 4 having been fulfilled to the satisfaction of such Holder or waived by
such Holder, to take the actions specified in this Agreement and the Trust
Agreement with respect to the Units on such Acceptance Date. Each Holder further
agrees that the authorization by such Holder to the Agent to release to each
applicable Seller its respective portion of the Aggregate Holder Funded Amount
with respect to the Units delivered on each applicable Acceptance Date shall
constitute the agreement of such Holder, without further act, notice or
confirmation, that all conditions set forth in Section 4 were either met to the
satisfaction of such Holder or, if not so met, were waived by it with respect to
the Units; provided, notwithstanding the foregoing, such Holder shall not be
deemed (pursuant to the foregoing provisions) to have waived its right after
such Acceptance Date to require the satisfaction of any such condition for which
the Lessee was responsible unless such Holder shall have given the Lessee an
express written waiver with respect to any such condition.
(b) Each Lender agrees that the making available to the
Agent of its respective portion of the Aggregate Lender Funded Amount for the
Units delivered on each applicable Acceptance Date in accordance with the terms
of this Section 2 shall constitute the direction of such Lender to the Agent,
without further act, authorization and direction by such Lender to the Agent,
subject, on such Acceptance Date, to the conditions set forth in Section 4
having been fulfilled to the satisfaction of such Lender or waived by such
Lender, to take the actions specified in this Agreement and the Loan Agreement
with respect to the Units on such Acceptance Date. Each Lender further agrees
that its authorization to the Agent to release to each applicable Seller its
respective portion of the Aggregate Lender Funded Amount with respect to the
Units
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delivered on each applicable Acceptance Date shall constitute the agreement of
such Lender, without further act, notice or confirmation that all conditions set
forth in Section 4 were either met to the satisfaction of such Lender or, if not
so met, were waived by it with respect to the Units; provided, notwithstanding
the foregoing, such Lender shall not be deemed (pursuant to the foregoing
provisions) to have waived its right after such Acceptance Date to require the
satisfaction of any such condition for which the Lessee was responsible unless
such Lender shall have given the Lessee an express written waiver with respect
to any such condition.
2.5 Expenses; Fees.
(a) Subject to the provisions of Section 2.5(b), the
Lessee agrees to pay when due the reasonable fees, costs and expenses (including
without limitation reasonable legal fees and expenses) of the Owner Trustee, the
Holders, the Lenders and the Agent incurred in connection with the negotiation,
documentation and closing of the Overall Transaction and/or the recording,
registration and filing of documents from time to time in connection with the
Overall Transaction ("Transaction Costs"). In addition, the Lessee agrees to pay
as Supplemental Rent all fees, costs and expenses (including without limitation
reasonable legal fees and expenses) of the Owner Trustee, the Holders, the
Lenders, the Bank Lenders, the Liquidity Facility Participants, the Liquidity
Provider and the Agent from time to time in connection with (i) any supplements,
amendments, modifications or alterations of any of the Operative Agreements
(other than with respect to such supplements, amendments, modifications, waivers
or alterations requested solely by parties to this Agreement other than Lessee
regarding matters solely for the benefit of such parties, in which case each
other party requesting such supplement, amendment, modification or alteration
shall bear its own fees, costs and expenses associated with such matter), (ii)
any enforcement action, preservation of rights, or exercise of remedies with
regard to the Operative Agreements and/or the Overall Transaction (other than
the fees, costs and expenses of the losing party to any such enforcement action,
preservation of rights or exercise of remedies, unless the actions or inactions
of such party giving rise to the particular enforcement action, preservation of
rights or exercise of remedies arises from an action or inaction of the Lessee),
(iii) any disposition of any Unit, (iv) the $5,000 initial fee of the Owner
Trustee, the $5,000 annual fee of the Owner Trustee, (v) the ongoing
out-of-pocket fees and expenses of the Owner Trustee (including without
limitation reasonable legal fees and expenses of the Owner Trustee) under the
Operative Agreements, (vi) the reasonable fees, costs and expenses of any
separate Owner Trustee or co-trustee appointed pursuant to the Trust Agreement
as a result of any requirement of Law or if otherwise required by any Operative
Agreement or if requested or consented to by the Lessee and (vii) the
Arrangement Fee payable in accordance with the Fee Letter. The Lessee also
agrees to pay as Supplemental Rent on the respective due date therefor from time
to time the Program Fee, the Dealer Fee, the Facility Fee and the Administrative
Fee. Notwithstanding the foregoing, with respect to Sections 2.5(a)(i) and (ii)
and the parenthetical phrases with respect to such Sections, it is expressly
understood and agreed that the Lessee shall pay any such fees, costs and
expenses incurred by the Initial Lender regardless of whether the Lessee
(pursuant to such Sections 2.5(a)(i) and (ii) and such parenthetical phrases)
otherwise would have no obligation for such fees, costs and expenses incurred by
the Initial Lender.
(b) Subject to the next sentence, if the transactions
contemplated hereby are not consummated for any reason, the Lessee shall pay all
Transaction Costs. Notwithstanding anything contained herein to the contrary, if
the transactions contemplated hereby are not
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consummated as a result of (i) a Holder's or a Lender's default in its
obligations to consummate the transactions hereunder or (ii) a Holder's failure
to make its equity investment as required by Section 2.2(a) or a Lender's
failure to make the Loan as required by Section 2.2(b), after the conditions
specified in Section 4 have been satisfied (other than conditions the
satisfaction of which are solely in the control of such Holder or such Lender),
such Holder or Lender shall pay its own fees, costs and expenses (including
without limitation its legal fees and expenses).
(c) Notwithstanding the foregoing provisions of this
Section 2.5, except as specifically provided in the Operative Agreements, the
Lessee shall have no liability for any costs or expenses relating to any
voluntary transfer by a Holder of a Certificate or by a Lender of a Note (other
than during the occurrence and continuation of a Lease Event of Default) and no
such costs or expenses shall constitute Transaction Costs and the Lessee will
not have any obligation with respect to the costs and expenses resulting from
any such transfer, whenever occurring.
2.6 Postponement of Acceptance Date.
(a) Each scheduled Acceptance Date specified in a Notice
of Delivery (or subsequently specified in a notice of postponement pursuant to
this Section 2.6) may be postponed for any reason (but to no later than the
Interim Term Expiration Date) if the Lessee gives the Holders, the Owner
Trustee, the Lenders, the Bank Lenders and the Agent facsimile or telephonic
(confirmed in writing) notice of the postponement and notice of the date to
which such Acceptance Date has been postponed, the notice of postponement to be
received by each party no later than 5:00 P.M., Eastern time, on the Business
Day prior to the scheduled Acceptance Date specified in the applicable Notice of
Delivery (or subsequently specified in a notice of postponement pursuant to this
Section 2.6), and the term "Acceptance Date" as used in this Agreement shall
mean the postponed "Acceptance Date".
(b) In the event of any postponement of a scheduled
Acceptance Date pursuant to this Section 2.6 (any such scheduled Acceptance Date
being referred to as a "Scheduled Acceptance Date" for the purposes of this
Section 2.6), (i) the Lessee will reimburse the Holders and the Lenders for the
loss of the use of their funds deposited with the Agent pursuant to Section
2.3(b) with respect to each such Unit occasioned by such postponement or failure
to accept by paying to the Holders and the Lenders on demand interest at the
Prime Rate, for the period from and including such Scheduled Acceptance Date to
but excluding the earlier of the date upon which such funds are returned (unless
such funds are returned after 11:00 A.M., Eastern time, in which case such date
of return shall be included) or the actual date of delivery, and (ii) the Agent
will return not later than 1:00 P.M. Eastern time, on the first Business Day
following such Scheduled Acceptance Date, any funds which it shall have received
from the Holders and the Lenders as their respective Aggregate Funded Amounts
for such Units, absent instruction from the Lessee, the Holders and the Lenders
to retain such funds until the specified date of postponement established under
Section 2.6(a).
(c) The Agent agrees that, in the event it has received
telephonic notice (to be confirmed promptly in writing) from the Lessee on a
Scheduled Acceptance Date that such Scheduled Acceptance Date is to be
postponed, it will if instructed in the aforementioned notice from the Lessee
(which notice shall specify the securities to be purchased) use reasonable best
efforts to invest, at the risk of the Lessee (except as provided below with
respect to the Agent's
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gross negligence or willful misconduct), the funds received by it from the
Participants with respect to their respective Aggregate Funded Amounts in
Permitted Investments in accordance with the Lessee's instructions. Any such
Permitted Investments purchased by the Agent upon instructions from the Lessee
shall be held in trust by the Agent for the benefit of the Participants,
respectively, whose funds are invested in Permitted Investments upon
instructions from the Lessee and any net profits on the investment of such funds
(including without limitation interest), if any, shall be for the account of and
shall on the Acceptance Date, or on the date such funds are returned to the
Participants, be paid over to, the Lessee. The Lessee shall pay to the Agent on
the Acceptance Date (if such Unit or Units are delivered and accepted pursuant
hereto) the amount of any net loss on the investment of such funds invested at
the instruction of the Lessee. If the funds furnished by the Participants with
respect to such Unit or Units are required to be returned to the Participants,
the Lessee shall, on the date on which such funds are so required to be
returned, reimburse the Agent, for the benefit of the Participants, for any net
losses incurred on such investments regardless of the cause of, or
responsibility for, such loss. The Agent shall not be liable for failure to
invest such funds or for any losses incurred on such investments except for its
own willful misconduct or gross negligence. In order to obtain funds for the
payment of the Equipment Cost for such Unit or Units or to return funds
furnished by the Participants to the Agent for the benefit of the Participants
with respect to such Unit or Units, the Agent is authorized to sell any
Permitted Investments purchased as aforesaid with the funds received by it from
the Participants in connection with such Unit or Units.
2.7 Conclusion of Interest Periods and Payment Periods on Interim
Term Expiration Date.
With respect to each Loan in effect immediately prior to the Interim
Term Expiration Date, the Lessee shall cause the Interest Period for each such
Loan to end on the Interim Term Expiration Date. With respect to each Holder
Advance in effect immediately prior to the Interim Term Expiration Date, the
Lessee shall cause the Payment Period for each such Holder Advance to end on the
Interim Term Expiration Date.
2.8 Conversion and Continuation Options.
(a) The Lessee (on behalf of the Owner Trustee) may elect
from time to time to convert LIBOR Loans to ABR Loans and LIBOR Holder Advances
to ABR Holder Advances by giving the Agent (on behalf of the Owner Trustee, the
Lenders and the Holders) at least three Business Days' prior irrevocable notice
of such election, provided, that any such conversion of LIBOR Loans or LIBOR
Holder Advances may only be made on the last day of the Interest Period or
Payment Period with respect thereto. The Lessee (on behalf of the Owner Trustee)
may elect from time to time to convert ABR Loans to LIBOR Loans and ABR Holder
Advances to LIBOR Holder Advances by giving the Agent at least three Business
Days' prior irrevocable notice of such election. Upon receipt of any such
notice, the Agent shall promptly notify each Lender respecting the conversion of
any Loans and each Holder respecting the conversion of any Holder Advances. All
or any part of outstanding LIBOR Loans, ABR Loans, LIBOR Holder Advances or ABR
Holder Advances may be converted as provided herein, provided, that (i) no ABR
Loan or ABR Holder Advance may be converted into a LIBOR Loan or LIBOR Holder
Advance after the date that is one month prior to the Maturity Date or the
Expiration Date, as the case may be, (ii) such notice of conversion regarding
any LIBOR Loan or LIBOR Holder
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Advance shall contain an election by the Lessee (on behalf of the Owner Trustee)
of an Interest Period for such LIBOR Loan or a Payment Period for such LIBOR
Holder Advance to be created by such conversion and such Interest Period or
Payment Period shall be in accordance with the terms of the definition of the
terms "Interest Period" or "Payment Period," as the case may be.
(b) Subject to the restrictions set forth in Section 2.1,
any LIBOR Loan or LIBOR Holder Advance may be continued as such upon the
expiration of the then current Interest Period or Payment Period with respect
thereto by the Lessee (on behalf of the Owner Trustee) giving irrevocable notice
to the Agent (which notice the Agent shall promptly provide to the Lenders and
the Holders), in accordance with the applicable notice provision for the
conversion of ABR Loans to LIBOR Loans or ABR Holder Advances to LIBOR Holder
Advances set forth herein, of the length of the next Interest Period or Payment
Period to be applicable to such Loans or Holder Advances, provided, that no
LIBOR Loan or LIBOR Holder Advance may be continued as such after the date that
is one month prior to the Maturity Date or the Expiration Date and provided,
further, that if the Lessee (on behalf of the Owner Trustee) shall fail to give
any required notice as described above or otherwise herein, or if such
continuation is not permitted pursuant to the preceding proviso, such Loan or
Holder Advance shall automatically be converted to a Reference Rate Loan or
Reference Rate Holder Advance on the last day of such then expiring Interest
Period or Payment Period.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Owner Trustee.
The Owner Trustee, both in its individual capacity and as the Owner
Trustee, represents and warrants to the other parties to this Agreement,
notwithstanding the provisions of Section 10.9 or any similar provision in any
other Operative Agreement, that, as of the date hereof:
(a) The Owner Trustee, in its individual capacity, is a
national banking association duly organized and validly existing in good
standing under the Laws of the United States of America, has full power and
authority to carry on its business as now conducted and to enter into and
perform its obligations hereunder and under the Trust Agreement and (assuming
due authorization, execution and delivery of the Trust Agreement by the Holders)
has full power and authority, as the Owner Trustee and/or, to the extent
expressly provided herein or therein, in its individual capacity, to enter into
and perform its obligations under each of the Owner Trustee Agreements.
(b) The Owner Trustee, in its individual capacity, has
duly authorized, executed and delivered the Trust Agreement and (assuming the
due authorization, execution and delivery of the Trust Agreement by the Holders)
the Owner Trustee in its trust capacity and, to the extent expressly provided
therein, in its individual capacity, has duly authorized, executed and delivered
each of the other Owner Trustee Agreements to be delivered as of the Closing
Date; and the Owner Trustee Agreements each constitute or when entered into will
constitute a legal, valid and binding obligation of the Owner Trustee, in its
individual capacity to the extent such Owner Trustee Agreements relate to the
Owner Trustee in its individual capacity, enforceable against it in its
individual capacity in accordance with its terms except as the same may be
limited by
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bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the
rights of creditors generally and by general principles of equity.
(c) Assuming the due authorization, execution and
delivery of the Trust Agreement by the Holders and each of the Owner Trustee
Agreements to be delivered as of the Closing Date by each of the other parties
thereto, each of the Owner Trustee Agreements to which it is a party
constitutes, or when entered into will constitute, a legal, valid and binding
obligation of the Owner Trustee, enforceable against the Owner Trustee, in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar Laws
affecting the rights of creditors generally and by general principles of equity.
(d) Neither the execution and delivery by the Owner Trustee,
in its individual capacity or as the Owner Trustee, as the case may be, of the
Owner Trustee Agreements, nor the consummation by the Owner Trustee, in its
individual capacity or as the Owner Trustee, as the case may be, of any of the
transactions contemplated hereby or thereby, nor the compliance by the Owner
Trustee, in its individual capacity, or as the Owner Trustee, as the case may
be, with any of the terms and provisions hereof and thereof, (i) requires or
will require any approval of its stockholders, or approval or consent of any
trustees or holders of any indebtedness or obligations of it in its individual
capacity, or (ii) violates or will violate its organizational documents or
by-laws, or contravenes or will contravene any provision of, or constitutes or
will constitute a default under, or results or will result in any breach of, any
indenture, mortgage, chattel mortgage, deed of trust, conditional sale contract,
bank loan or credit agreement, license or other agreement or instrument to which
the Owner Trustee in its individual capacity is a party or by which it is bound,
or contravenes or will contravene any Law, governmental rule or regulation of
the State of Utah or of the United States of America governing the banking or
trust powers of the Owner Trustee, or any judgment or order applicable to or
binding on it.
(e) There are no Taxes payable by the Owner Trustee,
either in its individual capacity or as the Owner Trustee, imposed by the State
of Utah or any political subdivision thereof in connection with the execution
and delivery by the Owner Trustee in its individual capacity of the Trust
Agreement, and, in its individual capacity or as the Owner Trustee, as the case
may be, of this Agreement or the other Owner Trustee Agreements solely because
the Owner Trustee in its individual capacity is a national banking association
with its principal place of business in Salt Lake City, Utah and performs
certain of its duties as the Owner Trustee in the State of Utah; and there are
no Taxes payable by the Owner Trustee, in its individual capacity or as the
Owner Trustee, as the case may be, imposed by the State of Utah or any political
subdivision thereof in connection with the acquisition of its interest in the
Equipment (other than franchise or other Taxes based on or measured by any fees
or compensation received by the Owner Trustee for services rendered in
connection with the transactions contemplated hereby) solely because the Owner
Trustee in its individual capacity is a national banking association with its
principal place of business in Salt Lake City, Utah and performs certain of its
duties as the Owner Trustee in the State of Utah.
(f) There are no pending or, to its knowledge, threatened
actions or proceedings against the Owner Trustee, either in its individual
capacity or as the Owner Trustee, before any court or administrative agency
which individually or in the aggregate, if determined
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adversely to it, would materially adversely affect the ability of the Owner
Trustee, in its individual capacity or as the Owner Trustee, as the case may be,
to perform its obligations under the Trust Agreement or the other Owner Trustee
Agreements.
(g) Its chief executive office, principal place of
business and the place where its records concerning the Equipment and all its
interest in, to and under all documents relating to the Trust Estate are located
at 79 South Main Street, Third Floor, Salt Lake City, Utah 84111.
(h) No consent, approval, order or authorization of,
giving of notice to, or registration with, or taking of any other action in
respect of, any Utah state or local governmental authority or agency or any
United States federal governmental authority or agency regulating the banking or
trust powers of the Owner Trustee, in its individual capacity, is required for
the execution and delivery of, or the carrying out by, the Owner Trustee in its
individual capacity or as the Owner Trustee, as the case may be, of any of the
transactions contemplated hereby or by the Trust Agreement or of any of the
transactions contemplated by any of the other Owner Trustee Agreements, other
than any such consent, approval, order, authorization, registration, notice or
action as has been duly obtained, given or taken.
3.2 Representations and Warranties of the Lessee as of the
Closing Date.
The Lessee represents and warrants to the other parties to this
Agreement that, as of the Closing Date:
(a) The Lessee is a corporation duly organized, validly
existing and in good standing under the Laws of Delaware, has all requisite
corporate power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into this
Agreement and the other Operative Agreements to which it is a party and to carry
out the transactions contemplated hereby and thereby.
(b) The Lessee is duly qualified to do business wherever
necessary to carry out its business and operations, except in jurisdictions in
which the failure to be so qualified would not have a Material Adverse Effect.
(c) This Agreement and the other Operative Agreements to
which the Lessee is a party have been duly authorized and, except for such
Operative Agreements which are to be delivered at subsequent Acceptance Dates,
accepted and delivered. The execution, delivery and performance of this
Agreement and the other Operative Agreements to which the Lessee is a party, the
payment and performance of all obligations, and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Lessee.
(d) The execution, delivery and performance of this
Agreement and the other Operative Agreements to which the Lessee is a party, the
payment and performance of the obligations, and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) violate the
certificate of incorporation or bylaws of the Lessee, (ii) violate any order,
judgment or decree of any court or other agency of government binding on the
Lessee or any of its property or assets, (iii) violate any provision of Law
applicable to the Lessee, (iv)
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conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any provision of any (x) indenture, mortgage, deed
of trust, credit agreement or note purchase agreement or other agreement or
instrument, in each case with respect to the Lessee's indebtedness for borrowed
money or (y) contract, undertaking, agreement or other instrument not described
in clause (x) above to which the Lessee or their respective properties or assets
is bound (collectively, any "Contractual Obligation"), (v) result in or require
the creation or imposition of any Lien upon any material properties or assets of
the Lessee, or (vi) require any approval or consent of stockholders or any
governmental authority, or require any approval or consent of any Person under
any Contractual Obligation, except with respect to this clause (vi) for such
approvals or consents as have been obtained on or before the Closing Date,
copies of which have been provided to the Agent on or before the Closing Date.
(e) The consolidated balance sheet of the Lessee at
December 29, 1996 and the related consolidated statements of income and cash
flows for the Lessee's fiscal year ended as of said date, which have been
examined by Price Waterhouse & Co., who delivered an unqualified opinion with
respect thereto, were prepared in conformity with GAAP. All such financial
statements fairly present the consolidated financial position of the Lessee and
its Subsidiaries as at the date thereof and the consolidated results of
operations and cash flows of the Lessee and its Subsidiaries for the period
covered thereby. All information heretofore furnished by the Lessee to the
Agent, the Lenders, the Bank Lenders, the Owner Trustee and the Holders for
purposes of or in connection with the Operative Agreements or any transaction
contemplated thereby is, and all such information hereafter furnished by the
Lessee to the other parties to this Agreement will be true and accurate in every
material respect, on the date such information is stated or certified.
(f) Since December 29, 1996 there has been no material
adverse change in the financial condition, operations or business of the Lessee
and its Subsidiaries, taken as a whole.
(g) There is no action, suit, proceeding, arbitration
(whether or not purportedly on behalf of the Lessee or any of its Subsidiaries)
with respect to which the Lessee or such Subsidiary has been notified or
otherwise has knowledge, or, to the knowledge of the Lessee, governmental
investigation, at Law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, pending or, to the knowledge of the Lessee, threatened with
respect to any domestic action, suit, proceeding, governmental investigation or
arbitration, or pending for more than 30 days or, to the knowledge of the
Lessee, threatened with respect to any foreign action, suit, proceeding,
governmental investigation or arbitration against or affecting the Lessee or any
of its Subsidiaries or any property of the Lessee or any of its Subsidiaries
that would reasonably be expected to result in a Material Adverse Effect.
(h) All Tax returns and reports of the Lessee and its
Subsidiaries required to be filed by any of them have been timely filed in
compliance with all applicable Laws, except where the failure to so timely file
or comply with applicable Laws, has not had and would not reasonably be expected
to have a Material Adverse Effect. All Taxes, assessments, fees and other
governmental charges upon the Lessee and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable except for those that are being
contested in good faith and for which adequate reserves
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have been provided by the Lessee or the applicable Subsidiary with respect to
which the failure to pay would not reasonably be expected to have a Material
Adverse Effect.
(i) (Intentionally Omitted)
(j) The Lessee is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
(k) The Lessee has not used nor will it use any portion
of the proceeds from the issuance of the Certificates or the Notes in any manner
that might cause the application of such proceeds, whether directly or
indirectly, to (i) violate Regulations G, U, T or X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board, as in effect
on the date or dates of the use of such proceeds, or (ii) be used to acquire any
security in any transaction which is subject to Section 13 or 14 of the
Securities and Exchange Act of 1934, or any regulations issued pursuant thereto.
(l) A copy of the most recent Annual Report (5500 Series
Form), including all attachments thereto, filed with the Internal Revenue
Service has been provided to the Agent (on behalf of the other parties to this
Agreement, excluding the Lessee) for each Plan and fairly presents the funding
status of each Plan. There has been no material deterioration in any Plan's
funding status since the date of such Annual Report. The Lessee has provided the
Agent on behalf of the Owner Trustee, the Holders, the Lenders and the Bank
Lenders with a list of all Plans and Multiemployer Plans and all available
information with respect to its or any Controlled Group Member's direct,
indirect or potential withdrawal liability to any Multiemployer Plan.
(m) Each of the Lessee and its Subsidiaries is and has
been in compliance with all Environmental Laws, whether in connection with the
ownership, use, maintenance or operation of any owned or leased property or the
conduct of any business thereon, therewith or otherwise, except for any
non-compliance which would not reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 3, neither the Lessee, any of its
Subsidiaries nor, to the knowledge of the Lessee, any third Person at any time
occupying or using any property owned or leased by the Lessee or any of its
Subsidiaries, has at any time used, generated, disposed of, stored or
transported to or from, any Hazardous Materials on, under, at, with or otherwise
with respect to such property, except in compliance with all applicable
Environmental Laws other than any non-compliance which would not reasonably be
expected to have a Material Adverse Effect. Except as set forth in Schedule 3,
to the knowledge of the Lessee, no Person has at any time within the five-year
period immediately preceding the Closing Date released or threatened the release
of any Hazardous Materials in any form, quantity or concentration on, under, at,
with or otherwise with respect to any property owned or leased by the Lessee or
its Subsidiaries in a manner which would reasonably be expected to have a
Material Adverse Effect.
(n) No Lease Default or Lease Event of Default has
occurred and is continuing and to the knowledge of the Lessee, no Event of Loss
has occurred.
(o) The principal place of business and chief executive
office of the Lessee and the place where the Lessee shall retain its records
concerning the Equipment and all its interest in, to and under all documents
relating to the Trust Estate (i) are located in Mecklenburg County,
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North Carolina and (ii) have been located at such address for no less than the
six month period immediately preceding the Closing Date.
(p) The legal name of the Lessee is (and for no less than the
six months period immediately preceding the Closing Date has been) "Coca-Cola
Bottling Co. Consolidated".
(q) The principal place of business (as such term is
defined under the Kentucky Uniform Commercial Code) of the Lessee in Kentucky is
located in Pike County, Kentucky.
3.3 Representations and Warranties of the Lessee as of Each
Acceptance Date.
The Lessee represents and warrants to the other parties to this
Agreement that, as of each Acceptance Date (except to the extent any such
representations and warranties are waived in writing by the other parties to
this Agreement as of such Acceptance Date):
(a) All the Incorporated Representations and the
representations and warranties given by the Lessee under Section 3.2 (except
with respect to Sections 3.2(f) and (h)) shall be true and accurate as of each
such Acceptance Date, as applicable, except to the extent that such
representations and warranties relate solely to an earlier date (in which case
such representations and warranties were true and correct on and as of such
earlier date).
(b) Upon (i) the filing (on the initial Acceptance Date)
of the Uniform Commercial Code financing statements (which have been prepared by
the Agent and reviewed by the Lessee) in the filing offices referenced on such
Uniform Commercial Code financing statements, (ii) the execution and delivery of
the applicable Lease Supplement (on each Acceptance Date) regarding the
Equipment accepted under the Lease on such Acceptance Date, and (iii) the filing
(on each Acceptance Date) by the Lessee in filing offices of its determination
in the Approved States of applications for the certificates of title (which
applications the Lessee has prepared or caused to be prepared) regarding the
Equipment accepted under the Lease on such Acceptance Date subject to
certificate of title statutes, all filings and other actions necessary or
reasonably required to establish and perfect the right, title and interest of
the Owner Trustee (and to establish good and marketable legal title in favor of
the Owner Trustee, free and clear of all Liens, except Permitted Liens) in and
to the Equipment funded on the applicable Acceptance Date and the remainder of
the Trust Estate and to perfect the Lien of the Agent on the Collateral will
have been made on or prior to such Acceptance Date and the Loan Agreement will
on such Acceptance Date create a valid and perfected first priority Lien on the
Collateral, subject to any Lessor's Liens and Permitted Liens.
(c) On the applicable Acceptance Date all sales, use or
transfer Taxes due and payable upon the purchase of the Equipment by the Owner
Trustee on each applicable Acceptance Date and on the lease thereof to the
Lessee will have been paid or the Lessee shall be liable for the payment
thereof.
(d) The Units accepted under the Lease on such Acceptance
Date are adequate to operate in commercial service and comply with all Laws
governing the service in which such Units are being placed by the Lessee; each
Unit specified in Schedule 1 to the applicable Lease
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Supplement has been delivered directly by the applicable Seller to the Lessee
and the Lessee is unaware of any structural defects in or damage to such Units.
(e) The conveyance of the Units effected on such
Acceptance Date are not void or voidable under any applicable Law.
(f) The Lessee is in compliance with all applicable
Environmental Laws relating to the Equipment accepted under the Lease on such
Acceptance Date including without limitation the ownership, use, transport,
storage, condition, maintenance and operation of the Equipment unless the
failure to comply with such Environmental Laws would not (i) reasonably be
expected to result in a Material Adverse Effect, (ii) materially adversely
affect the rights or interests of the Owner Trustee in the Equipment or (iii)
otherwise expose the Owner Trustee, the Holders, the Lenders, the Bank Lenders,
the Liquidity Provider, the Liquidity Facility Participants or the Agent to
criminal sanctions or civil liabilities.
(g) The Lessee has received no service of any writs,
injunctions, decrees, orders or judgments outstanding against the Lessee
relating to the Equipment accepted under the Lease on such Acceptance Date
including without limitation the ownership, use, transport, storage, condition,
maintenance or operation of the Equipment resulting from a violation of any
applicable Environmental Law, and there are no lawsuits, proceedings or
investigations under any applicable Environmental Law pending or, to the
Lessee's knowledge, threatened against the Lessee relating to the ownership,
use, maintenance or operation of the Equipment.
(h) The Units accepted under the Lease on such Acceptance Date
are personal property, not fixtures.
(i) The Units accepted under the Lease on such Acceptance Date
are all located in one of the Approved States.
(j) The failure of the Lessee to deliver a Purchase Agreement
Assignment respecting each Unit accepted under the Lease on such Acceptance Date
constitutes a representation and warranty by the Lessee (other than in the
Lessee's agency capacity for the benefit of the Owner Trustee pursuant to the
Collateral Agency Agreement) that neither the Lessee nor any Affiliate of the
Lessee is a party to, or a beneficiary of, any agreement or other document
pursuant to which the Lessee or such Affiliate has received any representation,
warranty or indemnity from the Seller or any other manufacturer or vendor
respecting such Unit.
(k) Since the date of the financial statements referenced in
Section 5.1 most recently provided by the Lessee to the Agent, there has been no
change in the financial condition, operations or business of the Lessee and its
Subsidiaries, taken as a whole, which would give rise to a Material Adverse
Effect.
(l) The Equipment accepted on such Acceptance Date in each of
the Approved States, as applicable, has an Equipment Cost as set forth in the
Certificate of Acceptance.
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(m) As of such Acceptance Date, the Lessee has two or more
"places of business" (as such term, or any similar term, is defined under the
Uniform Commercial Code of each Approved State) in each Approved State (other
than Ohio and Pennsylvania in which states the Lessee has no such "place of
business"); provided, notwithstanding the foregoing, the Lessee shall not be
deemed to have given the representation and warranty set forth in this Section
3.3(m) on such Acceptance Date if (i) the Lessee has fewer than two such "places
of business" in any Approved State as of such Acceptance Date and (ii) the
Lessee has given written notice to the Agent of the same no less than 15 days
prior to such Acceptance Date.
(n) As of such Acceptance Date, the Lessee has delivered
(i) invoices respecting the Equipment to be accepted on such Acceptance Date
which invoices reference the make, model, serial number, vehicle identification
number (if any), registration number (if any) and Equipment Cost of all such
Equipment and (ii) a list of all Equipment subject to the Lease on the day
immediately preceding such Acceptance Date, which list constitutes a true,
complete and correct listing in all material respects of the make, model, serial
number and Class of all Equipment subject to the Lease on the day immediately
preceding such Acceptance Date (collectively, such invoices and lists to be
delivered by the Lessee from time to time may be referred to as the "Filing
Materials").
SECTION 4. CLOSING CONDITIONS
4.1 Conditions Precedent to the Obligations of Parties other than
the Lessee on the Closing Date.
The obligation of each of the parties hereto (other than the Lessee) to
participate in the transactions contemplated hereby on the Closing Date shall be
subject to the following conditions on or prior to the Closing Date (except that
(i) the obligation of any such party shall not be subject to such party's own
performance or compliance and (ii) the conditions specified below as being only
for the benefit of a specified party or parties need be fulfilled only to the
satisfaction of, or waived by, such party or parties). (To the extent such
conditions precedent require the delivery of any agreement, document,
instrument, opinion or any other item, such shall be in form and substance
reasonably satisfactory to the Owner Trustee, the Holders, the Lenders and the
Agent.):
(a) On the Closing Date, each of the Operative Agreements
to be delivered as of such date shall have been duly authorized, executed and
delivered by the parties thereto, shall be in full force and effect and executed
counterparts of each shall have been delivered to the Agent or its designee (on
behalf of the Owner Trustee, the Holders, the Lenders and the Bank Lenders) on
or before the Closing Date and promptly thereafter, the Agent shall cause
executed counterparts of each to be delivered to the Owner Trustee, the Holders,
the Lenders and the Bank Lenders, except that executed Certificates shall be
delivered only to the Holders and executed Notes shall be delivered only to the
Lenders and no event shall have occurred and be continuing that constitutes a
Lease Default or a Lease Event of Default.
(b) On the Closing Date (i) the Lessee shall have caused
the Lease or appropriate other evidence, to be duly filed, recorded and
deposited in such place or places as the
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Owner Trustee, the Holders or the Agent may reasonably request for the
protection of the Owner Trustee's interest in the Lease and the protection of
the Agent's Lien under the Loan Agreement and (ii) Uniform Commercial Code
financing statements and other documents pertaining to Lien perfection shall
have been filed in such places as the Owner Trustee, any Participant or the
Agent may reasonably request for (A) the protection of the Owner Trustee's
interest in the Lease, or the Lien of the Agent in the Collateral and (B) the
termination of any existing Liens against the Collateral.
(c) On the Closing Date, the Owner Trustee, the Holders,
the Lenders and the Agent shall have received Lien searches regarding the Lessee
(including without limitation Uniform Commercial Code searches and similar
searches in foreign jurisdictions), Tax Lien searches and judgment Lien searches
in such jurisdictions as such parties shall determine in their reasonable
discretion and all such Liens which would materially impair the rights of such
parties (as reasonably determined by such parties) shall have been removed at
such time or otherwise handled in a manner reasonably satisfactory to all such
parties.
(d) On the Closing Date, the representations and
warranties of the parties hereto contained in Section 3 shall be true and
correct with the same effect as though made on and as of said date, except to
the extent that such representations and warranties relate solely to an earlier
date (in which case such representations and warranties were true and correct on
and as of such earlier date), and the execution and delivery of this Agreement
shall constitute a certification by each party giving such representations and
warranties as to the accuracy of the representations and warranties in Section 3
as of the Closing Date.
(e) On the Closing Date, the Owner Trustee, the Holders,
the Lenders, the Bank Lenders and the Agent shall have received the favorable
written opinion of each of (i) Witt, Gaither & Whitaker, P.C., counsel for the
Lessee and (ii) Ray, Quinney & Nebeker, counsel for the Owner Trustee.
(f) On the Closing Date, the Lessee shall deliver or
cause to be delivered to the Owner Trustee, the Holders, the Lenders, the Bank
Lenders and the Agent the following, each unless otherwise noted dated the
Closing Date, (i) good standing certificates from its jurisdiction of
incorporation, the jurisdiction of its principal place of business and each
other jurisdiction in which the failure to qualify may have a Material Adverse
Effect, each dated a recent date prior to the Closing Date, (ii) a certified
copy of its articles of incorporation, by-laws and the resolutions of its Board
of Directors approving and authorizing the execution, delivery and performance
of the Lessee Agreements, certified as of the Closing Date by its corporate
secretary or assistant secretary as being in full force and effect without
modification or amendment, and (iii) signature and incumbency certificates of
its officers executing the Operative Agreements to which it is a party.
(g) On the Closing Date, the Owner Trustee shall deliver
or cause to be delivered to the Holders, the Lenders, the Bank Lenders and the
Agent the following, each unless otherwise noted dated the Closing Date, (i) a
good standing certificate from the Office of the Comptroller of the Currency
dated a recent date prior to the Closing Date, (ii) a certified copy of its
articles of association, by-laws and the resolution of its Board of Directors
approving and authorizing the execution, delivery and performance of the
Operative Agreements to which it is a
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party, certified as of the Closing Date by an authorized officer as being in
full force and effect without modification or amendment, and (iii) signature and
incumbency certificates of its officers executing the Operative Agreements to
which it is a party.
(h) On the Closing Date, no action or proceeding shall
have been instituted nor shall governmental action be threatened before any
court or governmental agency, nor shall any order, judgment or decree have been
issued or proposed to be issued by any court or governmental agency at the time
of the Closing Date, to set aside, restrain, enjoin or prevent the completion
and consummation of this Agreement or the transactions contemplated hereby.
(i) On the Closing Date, all approvals and consents of
any trustees or holders of any indebtedness or obligations of the Lessee which
are required to be obtained on or prior to the Closing Date in connection with
the transactions contemplated by the Operative Agreements, shall have been duly
obtained and be in full force and effect.
(j) On the Closing Date, all actions, if any, required to
have been taken by any Governmental Authority of the United States on or prior
to the Closing Date in connection with the transactions contemplated by the
Operative Agreements shall have been taken by such Governmental Authority of the
United States and all orders, permits, waivers, exemptions, authorizations and
approvals of such entities required to be in effect on or prior to the Closing
Date in connection with the transactions contemplated by this Agreement shall
have been issued, and all such orders, permits, waivers, exemptions,
authorizations and approvals shall be in full force and effect, on the Closing
Date.
(k) On the Closing Date, the Agent shall have received
evidence satisfactory to it that the aggregate amount of the Arrangement Fee and
any other Fees due and payable on the Closing Date have been paid.
(l) On the Closing Date, the Owner Trustee, the Holders,
the Lenders, the Bank Lenders and the Agent shall have received the satisfactory
opinion of Arc International, Inc. (on a desk-top appraisal basis) stating that
the fair market value of the Units being delivered on such Acceptance Date is
equal to or greater than the aggregate Equipment Cost of such Units.
(m) On the Closing Date, the Owner Trustee, the Holders,
the Lenders, the Bank Lenders and the Agent shall have received such other
documents, appraisals, certificates, financing statements and other items, as
any such parties may reasonably require and to which any such party shall have
provided reasonable notice to the Lessee of such requirement.
4.2 Conditions Precedent to the Obligations of the Parties other than
the Lessee on each Acceptance Date.
The obligation of each of the parties hereto (other than the Lessee) to
participate in the transactions contemplated hereby on each Acceptance Date
shall be subject to the following conditions on or prior to such Acceptance Date
(except that (i) the obligation of any such party shall not be subject to such
party's own performance or compliance and (ii) the conditions specified below as
being only for the benefit of a specified party or parties need be fulfilled
only to the satisfaction of, or waived by, such party or parties). (To the
extent such conditions precedent
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require the delivery of any agreement, document, instrument, opinion or any
other item, such shall be in form and substance reasonably satisfactory to the
Owner Trustee, the Holders, the Lenders and the Agent.):
(a) On each applicable Acceptance Date, each of the
Operative Agreements to be delivered as of such Acceptance Date shall have been
duly authorized, executed and delivered by the parties thereto, shall be in full
force and effect and executed counterparts of each shall have been delivered to
the Owner Trustee, the Holders, the Lenders and the Agent or their counsel on or
before such Acceptance Date and no event shall have occurred and be continuing
that constitutes a Lease Default or a Lease Event of Default.
(b) On each applicable Acceptance Date (i) the Lessee
shall have caused the Lease and the Lease Supplement covering the Units
delivered on such Acceptance Date or appropriate other evidence, to be duly
filed, recorded and deposited in such place or places as the Owner Trustee, the
Holders or the Agent may reasonably request for the protection of the Owner
Trustee's title to the Equipment and interest in the Lease and the protection of
the Agent's Lien on the Collateral and (ii) Uniform Commercial Code financing
statements and other documents pertaining to Lien perfection shall have been
filed in such places as the Owner Trustee, any Participant or the Agent may
reasonably request for (A) the protection of the Owner Trustee's title to the
Equipment and interest in the Lease, or the Lien of the Agent in the Collateral
and (B) the termination of any existing Liens against the Collateral.
(c) On each applicable Acceptance Date, the Lessee shall
have delivered the Filing Materials for such Acceptance Date to the Agent (on
behalf of the Owner Trustee, the Holders, the Lenders and the Bank Lenders).
(d) On each applicable Acceptance Date, the
representations and warranties of the parties hereto contained in Section 3 and
the Incorporated Representations (other than those representations and
warranties contained in Sections 3.2(f) and (h)) shall be true and correct with
the same effect as though made on and as of said date, except to the extent that
such representations and warranties relate solely to an earlier date (in which
case such representations and warranties were true and correct on and as of such
earlier date), and the execution and delivery of the applicable Lease Supplement
shall constitute a certification by each party giving such representations and
warranties of the accuracy of the representations and the warranties in Section
3 and the Incorporated Representations (other than those representations and
warranties contained in Sections 3.2(f) and (h)) as of such Acceptance Date.
(e) On each applicable Acceptance Date, counsel for the
Lessee shall have delivered a legal opinion addressing such matters as
reasonably requested by the Owner Trustee, the Holders, the Lenders, the Bank
Lenders and the Agent, and shall include without limitation an opinion that the
Owner Trustee, on such Acceptance Date, has received good and marketable legal
title to each Unit of Equipment to be delivered on such Acceptance Date.
(e) On each applicable Acceptance Date, after giving
effect to the transactions contemplated hereby, the Owner Trustee shall have
good and marketable legal title to each Unit of Equipment to be delivered on
such Acceptance Date, free and clear of all Liens, and the
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execution and delivery of the Lease Supplement by the Lessee to which such Unit
is applicable shall be deemed a certification by the Lessee of the same.
(f) On each applicable Acceptance Date the Additionally
Insured Parties shall have received certificates of insurance signed by the
insurer or by an independent insurance broker evidencing insurance coverages
required pursuant to Section 12 of the Lease.
(g) On each applicable Acceptance Date, no action or
proceeding shall have been instituted nor shall governmental action be
threatened before any court or governmental agency, nor shall any order,
judgment or decree have been issued or proposed to be issued by any court or
governmental agency at the time of the applicable Acceptance Date, to set aside,
restrain, enjoin or prevent the completion and consummation of this Agreement or
the transactions contemplated hereby.
(h) On each applicable Acceptance Date, the Agent (on
behalf of the other parties to this Agreement) shall have received (or shall
have waived receipt of) the Notice of Delivery applicable to such Acceptance
Date required pursuant to Section 2.3.
(i) On each applicable Acceptance Date, the Owner Trustee
shall have received invoices of each Seller addressed to the Owner Trustee,
setting forth the portion of the Equipment Cost constituting the purchase price
payable to such Seller for the Units conveyed by such Seller on such Acceptance
Date.
(j) On each applicable Acceptance Date, no change shall
have occurred after the date of the execution and delivery of this Agreement in
applicable Law or interpretations thereof by regulatory authorities that, in the
opinion of either the Owner Trustee, the Holders, the Lenders, the Bank Lenders,
the Agent or their counsel, would make it illegal for such party to enter into
any transaction contemplated by the Operative Agreements.
(k) On each applicable Acceptance Date, each Holder shall
have made available its respective portion of the Aggregate Holder Funded Amount
in the amount specified in, and otherwise in accordance with, Sections 2.2(a)
and 2.3 and each Lender shall have made available its respective portion of the
Aggregate Lender Funded Amount in the amount specified in, and otherwise in
accordance with, Sections 2.2(b) and 2.3.
(l) On each applicable Acceptance Date, all approvals and
consents of any trustees or holders of any indebtedness or obligations of the
Lessee which are required to be obtained prior to such Acceptance Date in
connection with the transactions contemplated by the Operative Agreements, shall
have been duly obtained and be in full force and effect.
(m) On each applicable Acceptance Date, all actions, if
any, required to have been taken by any Governmental Authority on or prior to
such Acceptance Date in connection with the transactions contemplated by the
Operative Agreements on such Acceptance Date shall have been taken by such
Governmental Authority and all orders, permits, waivers, exemptions,
authorizations and approvals of such entities required to be in effect on such
Acceptance Date in connection with the transactions contemplated by this
Agreement on such Acceptance Date shall
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have been issued, and all such orders, permits, waivers, exemptions,
authorizations and approvals shall be in full force and effect, on such
Acceptance Date.
(n) On each applicable Acceptance Date, a Certificate of
Acceptance with respect to the applicable Units delivered to the Owner Trustee
(or to the Lessee, on behalf of the Owner Trustee) on such Acceptance Date shall
have been duly executed and delivered by the Lessee, as the authorized
representative of the Owner Trustee.
(o) The Owner Trustee, the Holders, the Lenders, the Bank
Lenders and the Agent shall have received such other documents, appraisals,
certificates, financing statements, opinions and other items as any such parties
may reasonably require, to the extent such parties shall have provided
reasonable notice to the Lessee taking into account the date the applicable
Notice of Delivery is delivered by the Lessee to the Agent.
4.3 Conditions Precedent to the Obligation of the Lessee on the Closing
Date.
The obligations of the Lessee to enter into this Agreement and the
other Operative Agreements to which the Lessee is a party is subject to the
following conditions as of the Closing Date:
(a) On the Closing Date, each of the Operative Agreements
to be delivered as of such date shall be reasonably satisfactory in form and
substance to the Lessee and shall have been duly authorized, executed and
delivered by the respective party or parties thereto (other than the Lessee),
and an executed counterpart of each thereof shall have been delivered to the
Lessee or its counsel (except that executed Certificates shall be delivered only
to the Holders and executed Notes shall be delivered only to the Lenders).
(b) On the Closing Date, the representations and
warranties of the Owner Trustee contained in Section 3 shall be true and correct
in all material respects as of the Closing Date as though made on and as of such
date, except to the extent that such representations and warranties relate
solely to an earlier date (in which case such representations and warranties
were true and correct on such earlier date) and the execution and delivery of
this Agreement shall constitute a certification by the Owner Trustee as to the
accuracy of the representations and warranties in Section 3 as of the Closing
Date.
(c) On the Closing Date, the Lessee shall have received
the opinion of counsel, in form and substance reasonably satisfactory to the
Lessee, referred to in Section 4.1(e)(ii) addressed to the Lessee.
(d) (Intentionally Omitted)
(e) On the Closing Date, there shall have been duly
issued and delivered by the Owner Trustee to the Lenders, against payment
therefor, the Notes and to the Holders, the Certificates, each dated the Closing
Date.
(f) On the Closing Date, the Owner Trustee shall deliver
or cause to be delivered to the Lessee the following, each unless otherwise
noted dated the Closing Date and in
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form and substance satisfactory to them, (i) a good standing certificate from
the Office of the Comptroller of the Currency dated a recent date prior to the
Closing Date, (ii) a certified copy of its articles of association, by-laws and
the resolution of its Board of Directors approving and authorizing the
execution, delivery and performance of the Operative Agreements to which it is a
party, certified as of the Closing Date by an authorized officer as being in
full force and effect without modification or amendment, and (iii) signature and
incumbency certificates of its officers executing the Operative Agreements to
which it is a party.
(g) On the Closing Date, no change shall have occurred
after the date of the execution and delivery of this Agreement in applicable Law
or interpretations thereof by regulatory authorities that, in the opinion of
either the Lessee or its counsel, would make it illegal for the Lessee to enter
into any transaction contemplated by the Operative Agreements.
(h) On the Closing Date, all actions, if any, required to
have been taken by any Governmental Authority on or prior to the Closing Date in
connection with the transactions contemplated by the Operative Agreements on the
Closing Date shall have been taken by any such Governmental Authority and all
orders, permits, waivers, exemptions, authorizations and approvals of such
entities required to be in effect on the Closing Date in connection with the
transactions contemplated by the Operative Agreements on the Closing Date shall
have been issued, and all such orders, permits, waivers, exemptions,
authorizations and approvals shall be in full force and effect, on the Closing
Date.
4.4 Conditions Precedent to the Obligations of the Lessee on each
Acceptance Date.
The obligation of the Lessee to participate in the transactions
contemplated hereby on each Acceptance Date shall be subject to the following
conditions on or prior to such Acceptance Date (except that (i) the obligation
of the Lessee shall not be subject to the Lessee's own performance or compliance
and (ii) the conditions specified below as being only for the benefit of a
specified party or parties need be fulfilled only to the satisfaction of, or
waived by, such party or parties). (To the extent such conditions precedent
require the delivery of any agreement, document, instrument, opinion or any
other item, such shall be in form and substance reasonably satisfactory to the
Lessee.):
(a) On each applicable Acceptance Date, each of the
Operative Agreements to be delivered as of such date shall be reasonably
satisfactory in form and substance to the Lessee and shall have been duly
authorized, executed and delivered by the respective party or parties thereto
(other than the Lessee), and an executed counterpart of each thereof shall have
been delivered to the Lessee or its special counsel.
(b) On each applicable Acceptance Date, the
representations and warranties of the Owner Trustee contained in Section 3 shall
be true and correct with the same effect as though made on and as of said date,
except to the extent that such representations and warranties relate solely to
an earlier date (in which case such representations and warranties were true and
correct on such earlier date) and the execution and delivery of the applicable
Lease Supplement shall constitute a certification by the Owner Trustee as to the
accuracy of the representations and warranties in Section 3 as of such
Acceptance Date.
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(c) On each applicable Acceptance Date, no action or
proceeding shall have been instituted nor shall governmental action be
threatened before any court or governmental agency, nor shall any order,
judgment or decree have been issued or proposed to be issued by any court or
governmental agency at the time of such Acceptance Date, to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement or the
transactions contemplated hereby.
(d) On each applicable Acceptance Date, each Holder shall
have made available its respective portion of the Aggregate Holder Funded Amount
in the amount specified in, and otherwise in accordance with, Sections 2.2(a)
and 2.3.
(e) On each applicable Acceptance Date, each Lender shall
have made available its respective portion of the Aggregate Lender Funded Amount
in the amount specified in, and otherwise in accordance with, Sections 2.2(b)
and 2.3.
(f) (Intentionally Omitted)
(g) On each applicable Acceptance Date, after giving
effect to the transactions contemplated hereby, the Owner Trustee shall have
good and marketable legal title to each Unit of Equipment to be delivered on
such Acceptance Date, free and clear of all Liens, except Permitted Liens.
(h) On each applicable Acceptance Date, no change shall
have occurred after the date of the execution and delivery of this Agreement in
applicable Law or interpretations thereof by regulatory authorities that, in the
opinion of either the Lessee or its counsel, would make it illegal for the
Lessee to enter into any transaction contemplated by the Operative Agreements.
(i) On each applicable Acceptance Date, all actions, if
any, required to have been taken by any Governmental Authority on or prior to
such Acceptance Date in connection with the transactions contemplated by the
Operative Agreements on such Acceptance Date shall have been taken by any such
Governmental Authority and all orders, permits, waivers, exemptions,
authorizations and approvals of such entities required to be in effect on such
Acceptance Date in connection with the transactions contemplated by the
Operative Agreements on such Acceptance Date shall have been issued, and all
such orders, permits, waivers, exemptions, authorizations and approvals shall be
in full force and effect, on such Acceptance Date.
SECTION 5. COVENANTS OF THE LESSEE
5.1 Financial and Other Reports of the Lessee.
The Lessee will prepare consolidated financial statements in conformity
with GAAP. The Lessee agrees that it will furnish directly to the Agent the
following (and immediately thereafter the Agent shall provide copies of the same
to the Owner Trustee, the Holders, the Lenders and the Bank Lenders):
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(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Lessee, copies of the consolidated
balance sheet of the Lessee and its Consolidated Subsidiaries as at the end of
such year and of the related consolidated statements of income and retained
earnings and changes in financial position for such year, setting forth in each
case in comparative form the figures for the previous year, certified without
qualification arising out of the scope of the audit, by independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of each
fiscal year of the Lessee, copies of the unaudited consolidated balance sheet of
the Lessee and its Consolidated Subsidiaries as at the end of such quarter and
of the related unaudited consolidated statements of income and retained earnings
and changes in financial position of the Lessee and its Consolidated
Subsidiaries for such quarterly period and the portion of the fiscal year
through such date, setting forth in each case in comparative form figures for
the previous year, certified by a Responsible Officer (subject to normal
year-end audit adjustments).
(c) concurrently with the delivery of the financial
statements referred to in Section 5.1(a) above, a certificate of the independent
certified public accountants certifying such financial statements stating that
in making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate, and
certifying the Company's compliance with the terms of the financial maintenance
covenants set forth in Section 6.01 of the Credit Agreement, as such covenants
have been incorporated by reference herein pursuant to Section 5.2.
(d) concurrently with the delivery of the financial
statements referred to in Section 5.1(a) and (b) above, a Compliance Certificate
(in the form of Exhibit D).
(e) promptly, such additional financial and other
information as any other party to this Agreement may from time to time
reasonably request.
All financial statements referenced in Section 5.1(a) and (b) shall be
complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
5.2 Incorporation of Provisions from Credit Agreement.
Reference is made to the Credit Agreement and the covenants contained
in Sections 6.01, 6.03, 6.04, 6.06, 6.07, 6.08 and 6.10 of the Credit Agreement
(hereinafter referred to as the "Incorporated Covenants") and the
representations and warranties referenced in Section 4.02(a) of the Credit
Agreement (hereinafter referred to as the "Incorporated Representations"). The
Lessee hereby agrees with and for the benefit of the other parties hereto that
the Incorporated Covenants and the Incorporated Representations (and all other
relevant provisions of the Credit Agreement related thereto, including without
limitation the defined terms contained in the Credit Agreement which are used in
the Incorporated Covenants or the Incorporated Representations, as
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the case may be) are hereby incorporated by reference into this Agreement to the
same extent and with the same effect as if set forth fully herein and shall
inure to the benefit of the parties thereto. In the event a waiver is granted
under the Credit Agreement or an amendment or modification is executed with
respect to the Credit Agreement, and such waiver, amendment and/or modification
affects the Incorporated Covenants or the Incorporated Representations, as the
case may be, then such waiver, amendment and/or modification shall automatically
be effective with respect to the Incorporated Covenants or the Incorporated
Representations, as the case may be, as if incorporated by reference into this
Agreement. Any cure or waiver of a Credit Agreement Event of Default with regard
to the Incorporated Covenants or the Incorporated Representations, as the case
may be, shall constitute a cure or waiver of the related Lease Event of Default.
Notwithstanding any language to the contrary contained in this Agreement or any
other Operative Agreement, if the Credit Agreement is terminated or expires,
then the Incorporated Covenants and the Incorporated Representations, as the
case may be, shall remain in effect in the respective forms thereof as of such
date of termination or expiration of the Credit Agreement.
5.3 Change of Chief Executive Office.
No less than 15 days prior to the date upon which the Lessee (a) has
fewer than two "places of business" (as such term, or any similar term, is
defined under the Uniform Commercial Code of each Approved State) in any
Approved State and such fact requires an additional Uniform Commercial Code
filing, (b) shall change its principal place of business in Kentucky (as such
term is defined under the Kentucky Uniform Commercial Code) from Pike County,
Kentucky, or (c) shall change its chief executive office (as such term is
defined in Article 9 of the Uniform Commercial Code as in effect in the State of
North Carolina), principal place of business or the place where the Lessee shall
retain its records concerning the Equipment and all its interests in, to and
under all documents relating to the Trust Estate from 1900 Rexford Road,
Charlotte, North Carolina 28211, then in any such case the Lessee shall notify
the Agent (on behalf of the Owner Trustee, the Holders, the Bank Lenders and the
Lenders) of the same and of the need to make additional Uniform Commercial Code
filing with respect thereto.
5.4 Lien Searches.
Within 30 days after the Closing Date and within 30 days after the last
Acceptance Date, the Agent (on behalf of the Owner Trustee, the Holders, the
Lenders and the Bank Lenders) shall have received Lien searches regarding the
Lessee and the Equipment (including without limitation Uniform Commercial Code
searches and similar searches in foreign jurisdictions), Tax Lien searches and
judgment Lien searches in such jurisdictions as such parties shall determine in
their reasonable discretion, and Lessee shall cause all such Liens which would
materially impair the rights of such parties (as reasonably determined by such
parties) to be removed at such time or otherwise handled in a manner
satisfactory to all such parties.
5.5 Classification of Equipment.
At all times during the Term, the Lessee shall cause all Equipment to
be personal property, not fixtures.
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5.6 Notice Regarding Places of Business and Re-location of Equipment.
No less than 15 days prior to the date upon which the Lessee shall have
only one place of business (as such term, or any similar term, is defined under
the Uniform Commercial Code of each Approved State) in a particular Approved
State, the Lessee shall notify the Agent (on behalf of the Owner Trustee, the
Holders, the Bank Lenders and the Lenders) of the same and of the need to make
additional Uniform Commercial Code filings with respect thereto. Promptly upon
receipt of such notice, the Agent shall notify the Owner Trustee, the Holders,
the Bank Lenders and the Lenders of the same. No less than 15 days prior to the
date upon which any Unit shall be relocated to any jurisdiction (other than an
Approved State), the Lessee shall notify the Agent (on behalf of the Owner
Trustee, the Holders, the Bank Lenders and the Lenders) of the same and of the
need to make additional Uniform Commercial Code filings with respect thereto.
Promptly upon receipt of such notice, the Agent shall notify the Owner Trustee,
the Holders, the Bank Lenders and the Lenders of the same.
5.7 Lien Perfection Filings - Initial Acceptance Date.
Regarding the Uniform Commercial Code financing statements,
certificates of title and other filings referenced in Section 3.3 of this
Agreement relating to the initial Acceptance Date, the Lessee shall cause all
such filings to occur on or prior to a date five Business Days after the initial
Acceptance Date.
5.8 Allocation of Equipment Cost among the Approved States.
On the Basic Term Commencement Date and each annual anniversary thereof
during the Term, the Lessee shall provide a certificate to the Agent on behalf
of the Owner Trustee, the Lenders, the Holders and the Bank Lenders certifying
(a) any changes in the allocation of Equipment Cost among the Approved States
referenced in each Certificate of Acceptance and (b) the Lessee shall have made
all necessary and appropriate payment of additional filing taxes and other like
charges in connection with the foregoing. The Lessee shall provide evidence of
the same to the Agent on each such date.
5.9 UCC Filing at Basic Term Commencement Date.
On the Basic Term Commencement Date, the Agent (at the direction of the
Majority Holders or the Majority In Interest but at the cost and expense of the
Lessee) shall have the option of electing to amend the Uniform Commercial Code
financing statements filed with respect to the Equipment on or prior to such
date in a manner determined by the Agent in its reasonable discretion (such
amendments to be in form and substance satisfactory to the Majority Holders and
the Majority In Interest) in order to include a listing of the make, model and
serial numbers of the Equipment, then subject to the Lease. The Lessee hereby
agrees to execute any and all such amendments (as provided by the Agent to the
Lessee) and to promptly return the same to the Agent.
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SECTION 6. OTHER COVENANTS AND AGREEMENTS
6.1 Restrictions on Transfer.
(a) Subject to the proviso to this sentence, each Holder,
each Lender and each Bank Lender agrees that no such entity shall sell, transfer
or assign (in whole or in part) its right, title and interest in and to the
Operative Agreements (or any of them) without the prior written consent of the
Lessee (which consent may not be unreasonably withheld or delayed); provided, no
such consent from Lessee shall be required subsequent to the occurrence of a
Lease Default or Lease Event of Default; provided, further, that without the
prior written consent of the Lessee (i) a Holder may sell, transfer or assign
its interest to an Affiliate of such Holder or to another Holder, (ii) the
Initial Lender may sell, transfer or assign its interest to the Bank Lenders as
contemplated by Section 8, (iii) the Initial Lender may sell, transfer or assign
its interest to the Liquidity Provider as contemplated by the Liquidity
Documents, (iv) the Initial Lender may sell, transfer or assign its interest to
any multi-seller commercial paper funding vehicle administered by NationsBank or
any Affiliate thereof, (v) a Lender may sell, transfer or assign its interest to
an Affiliate of such Lender or to another Lender and (vi) a Bank Lender may
sell, transfer or assign its interest to an Affiliate of such Bank Lender or to
another Bank Lender. In addition, (x) no Holder may sell, transfer or assign any
such interest unless such sale, transfer or assignment is ratable as to all such
Holder's interests in the Operative Agreements (including without limitation
with respect to all Certificates), (y) no Lender may sell, transfer or assign
any such interest unless such sale, transfer or assignment is ratable as to all
such Lender's interests in the Operative Agreements (including without
limitation with respect to all Notes) and (z) no Bank Lender may sell, transfer
or assign any such interest unless such sale, transfer or assignment is ratable
as to all such Bank Lender's interests (including without limitation with
respect to all Notes). In addition, there shall be no such sale, transfer or
assignment of the Certificates or the Notes in violation of applicable
securities Laws, and Lessee shall have no obligation to pay any cost or expense
for the registration under applicable securities Laws of any Certificate or
Note. In addition, except with regard to any sale, transfer or assignment by a
Holder of its right, title and interest in and to the Operative Agreements (or
any of them) to an Affiliate of such Holder or to another Holder, each such
sale, transfer or assignment by a Holder shall be to a Person which (in the case
of any banking institution or insurance company) has capital, surplus and
undivided profits (or the equivalent) of at least $50,000,000 or (in the case of
any finance or leasing company or other Person) has a net worth of at least
$50,000,000 or in any such case in which the potential transferee does not
satisfy the foregoing standards for capital, surplus and undivided profits or
net worth, the obligations of such potential transferee are guaranteed by
another Person which does satisfy the foregoing standards for capital, surplus
and undivided profits or net worth.
(b) Upon any such transfer, (i) except as the context
otherwise requires, the Person to whom such sale, transfer or assignment is made
(a "Transferee") shall be deemed a "Holder", "Lender" or "Bank Lender", as the
case may be, and shall enjoy the rights and privileges and perform the
obligations of the transferring party (the "Transferor") to the extent of the
interest transferred hereunder and under each other Operative Agreement to which
the Transferor is a party, and, except as the context otherwise requires, each
reference in this Agreement and each other Operative Agreement to the "Holders",
the "Lenders" or the "Bank Lenders", as the case may be, shall thereafter be
deemed to include such Transferee for all purposes to the extent of the interest
transferred, (ii) the Transferor shall continue to be entitled to all the
benefits and
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rights, including without limitation the right to indemnification hereunder and
under each other Operative Agreement to which the Transferor was a party or by
which it was bound except to the extent otherwise agreed in writing; provided,
subsequent to any such sale, transfer or assignment from a Transferor to a
Transferee, with respect to any judgment award for which the Lessee has an
indemnity obligation under the Operative Agreements, the Lessee shall not have
an obligation to pay such judgment award more than once for the benefit of such
Transferor and Transferee; provided, further, the foregoing proviso shall not
diminish the obligations of the Lessee to indemnify each Transferor and
Transferee in all matters regarding fees, costs and expenses associated with
litigation and (iii) the Transferor shall be released from all obligations
hereunder and under each other Operative Agreement to which the Transferor is a
party or by which the Transferor is bound to the extent such obligations are
expressly assumed by a Transferee; provided, further, that in no event shall any
such sale, transfer or assignment waive or release the Transferor from any
liability on account of any breach existing immediately prior to such sale,
transfer or assignment of any of its representations, warranties, covenants or
obligations set forth in the Operative Agreements or for any gross negligence or
fraudulent or willful misconduct. The restrictions set forth in this Section 6.1
shall not apply with respect to the sale, transfer or assignment of the
Equipment which is to be consummated on or after the expiration or termination
of the Lease or after the occurrence of a Lease Event of Default. Except with
respect to any such sale, transfer or assignment of the interest by the Initial
Lender for which there shall be no transfer fee payable to the Agent, in
connection with any such sale, transfer or assignment of a Lender's interest or
a Bank Lender's interest, the Transferor or the Transferee (as agreed between
the parties) shall pay the Agent a transfer fee of $5,000.
(c) Subject to the rights of the Lessee pursuant to
Section 21 of the Lease, the Lessee shall not sell, transfer or assign (in whole
or in part) its respective right, title and interest in and to the Equipment
and/or its obligations hereunder or the other Operative Agreements without the
prior written consent of each other party to this Agreement (which consent may
be withheld in such party's sole discretion).
6.2 Lessor's Liens Attributable to the Holders.
(a) Each Holder hereby covenants and agrees with and for
the benefit of the other parties to this Agreement that such Holder will not
directly or indirectly create, incur, assume or suffer to exist any Lessor's
Liens on or against any part of the Trust Estate or the Equipment attributable
to it and each Holder agrees that it will, at its own cost and expense, take
such action as may be necessary to duly discharge and satisfy in full any such
Lessor's Lien described above (by bonding or otherwise in a manner reasonably
acceptable to the Lessee); provided, that such Holder may contest any such
Lessor's Lien in good faith by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of the Equipment or any interest therein and do not interfere with the use,
operation, or possession of the Equipment by the Lessee under the Lease or the
rights of the Lenders under the Loan Agreement or the payment of Rent.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the other parties to this Agreement from time to
time from and against any loss, cost, expense or damage which may be suffered by
such party as a result of the failure of such Holder
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to discharge and satisfy in full any Lessor's Lien attributable to it and of the
type identified in and when required to be discharged and satisfied by it under
Section 6.2(a).
6.3 Lessor's Liens Attributable to the Owner Trustee.
(a) The Owner Trustee in its individual capacity hereby
unconditionally agrees with and for the benefit of the other parties to this
Agreement that the Owner Trustee in its individual capacity will not directly or
indirectly create, incur, assume or suffer to exist any Lessor's Liens on or
against any part of the Trust Estate or the Equipment arising out of any act or
omission of or claim against the Owner Trustee in its individual capacity, and
the Owner Trustee in its individual capacity agrees that it will, at its own
cost and expense, take such action as may be necessary to duly discharge and
satisfy in full any such Lessor's Lien attributable to the Owner Trustee in its
individual capacity (by bonding or otherwise in a manner reasonably acceptable
to the Lessee and Lenders); provided, that the Owner Trustee may contest any
such Lessor's Lien in good faith by appropriate proceedings so long as such
proceedings do not involve any material danger of the sale, forfeiture or loss
of the Equipment or any interest therein and do not interfere with the use,
operation, or possession of the Equipment by the Lessee under the Lease or the
rights of the Lenders under the Loan Agreement or the payment of Rent.
(b) The Owner Trustee in its individual capacity agrees
to indemnify and hold harmless the other parties to this Agreement from and
against any loss, cost, expense or damage which may be suffered by such party as
a result of the failure of the Owner Trustee to discharge and satisfy any
Lessor's Liens attributable to it in its individual capacity and of the type
identified in and when required to be discharged and satisfied by it under
Section 6.3(a).
6.4 Liens Created by the Lenders.
(a) Each Lender (and each Bank Lender) covenants and
agrees with and for the benefit of the other parties to this Agreement that such
Lender (or such Bank Lender, as the case may be) shall not cause or permit to
exist any Lien on or against any part of the Trust Estate or the Equipment
attributable to such Lender (or such Bank Lender, as the case may be), except
such Liens which are contemplated and permitted by the Operative Agreements and
that such Lender (or such Bank Lender, as the case may be) will, at its own cost
and expense, promptly take such action as may be necessary duly to discharge any
such Lien; provided, that such Lender may contest any such Lien in good faith by
appropriate proceedings so long as such proceedings do not involve any material
danger of the sale, forfeiture or loss of the Equipment or any interest therein
and do not interfere with the use, operation, or possession of the Equipment by
the Lessee under the Lease or the rights of the Lenders under the Loan Agreement
or the payment of Rent.
(b) Each Lender (and each Bank Lender) agrees, severally
and not jointly, to indemnify and hold harmless the other parties to this
Agreement from time to time from and against any loss, cost, expense or damage
which may be suffered by such party as a result of the failure of such Lender
(or such Bank Lender, as the case may be) to discharge and satisfy in full any
Lien attributable to it and of the type identified in and when required to be
discharged and satisfied by it under Section 6.4(a).
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6.5 Liens Created by the Agent.
(a) The Agent covenants and agrees with and for the
benefit of the other parties to this Agreement that the Agent shall not cause or
permit to exist any Lien on or against any part of the Trust Estate or the
Equipment attributable to the Agent, except such Liens which are contemplated
and permitted by the Operative Agreements and that the Agent will, at its own
cost and expense, promptly take such action as may be necessary duly to
discharge any such Lien.
(b) The Agent agrees to indemnify and hold harmless the
other parties to this Agreement from time to time from and against any loss,
cost, expense or damage which may be suffered by such party as a result of the
failure of the Agent to discharge and satisfy in full any Lien attributable to
it and of the type identified in and when required to be discharged and
satisfied by it under Section 6.5(a).
6.6 Covenants Restricting the Owner Trustee.
So long as the Loans, the Notes, the Holder Advances or the
Certificates remain outstanding and have not been paid in full or otherwise
discharged in accordance with the terms of the Operative Agreements:
(a) The Owner Trustee shall not conduct, transact or otherwise
engage in, or commit to transact, conduct or otherwise engage in, any business
or operations other than the entry into, and exercise of rights and performance
of obligations in respect of, the Operative Agreements and other activities
incidental or related to the foregoing.
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(b) The Owner Trustee shall not own, lease, manage or
otherwise operate any properties or assets other than in connection with the
activities described in Section 6.6(a), or incur, create, assume or suffer to
exist any indebtedness or other consensual liabilities or financial obligations
other than as may be incurred, created or assumed or as may exist in connection
with the activities described in Section 6.6(a).
(c) The Owner Trustee shall not convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets,
including without limitation its interest in the Trust Estate, whether now owned
or hereafter acquired, except to the extent expressly contemplated by the
Operative Agreements.
(d) The Owner Trustee shall at all times (i) observe and
perform all of the covenants, conditions and obligations required to be
performed by it (whether in its capacity as the Lessor, the Owner Trustee or
otherwise) under each Operative Agreement to which it is a party and (ii)
observe and perform, or cause to be observed and performed, all of the
covenants, conditions and obligations of the Lessor under the Lease, even in the
event that the Lease is terminated at stated expiration following a Lease Event
of Default or otherwise.
(e) At any time and from time to time, upon the written
request of the Agent, any Lender or any Holder, the Owner Trustee will promptly
and duly execute and deliver such further instruments and documents and take
such further action as the Agent, any Lender or any Holder may reasonably
request for the purpose of obtaining or preserving the full benefits of this
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Agreement and the other Operative Agreements and of the rights and powers herein
or therein granted.
(f) If on any date a Responsible Officer of the Owner Trustee
shall obtain actual knowledge of the occurrence of a Default or Event of
Default, the Owner Trustee will give written notice thereof to the Agent within
five Business Days after such date.
(g) Without prejudice to any right under the Trust Agreement
of the Owner Trustee to resign, the Owner Trustee (and in its individual
capacity, First Security) agrees not to terminate or revoke the trust created by
the Trust Agreement except as permitted by the terms thereof.
(h) On each Acceptance Date, the Owner Trustee's right, title
and interest in and to the Equipment delivered on such Acceptance Date and the
Collateral shall be free of any Lessor's Liens attributable to the Owner Trustee
in its individual capacity.
(i) The Owner Trustee shall receive from each Seller such
title to the Equipment as is conveyed to it by such Seller, subject to the
rights of the Owner Trustee and the Lessee under the Lease.
(j) The Owner Trustee in its individual capacity agrees to
give the Lessee, the Holders, the Lenders, the Bank Lenders and the Agent at
least 30 days prior written notice of any relocation of the Owner Trustee's
chief executive office, principal place of business or said place where its
records concerning the Equipment and all its interest in, to and under all
documents relating to the Trust Estate are located from its present location
referenced in Section 3.1(g) or any subsequent location, which in all cases
shall remain in the United States.
6.7 Covenants of All Parties Regarding Operative Agreements.
The Owner Trustee (in its individual and trust capacity), the Holders,
the Agent, the Lenders, the Bank Lenders and the Lessee hereby agree to comply
with the provisions of all Operative Agreements to which they are a party and
not to terminate, amend, modify, supplement, restate and/or replace any
Operative Agreement in such a manner that increases the obligations or
liabilities, or decreases the rights of, or is adverse to, any other party
hereto or the Liquidity Provider or any Liquidity Facility Participant, without
the prior written consent of such Person (it being understood that the consent
of each Lender and each Holder is unnecessary to the extent permitted by the
provisions of Section 9.1 of the Loan Agreement and Section 11.01 of the Trust
Agreement, respectively).
6.8 Rent Sufficiency.
Anything contained herein, in the Lease or in any other Operative
Agreement to the contrary notwithstanding, the aggregate amount of Basic Rent
payable on any Payment Date under the Lease shall be, under any circumstances
and in any event, at least equal to the sum of (a) the amount of the scheduled
installments of the Holder Advances to be repaid and yield on the Certificates,
plus (b) the amount of scheduled installments of principal and interest on the
Notes, in each case, due on such Payment Date. Anything contained herein, in the
Lease or in any other
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Operative Agreement or other agreement to the contrary notwithstanding, the
amount of the Stipulated Loss Value payable on any date on account of any Unit
of Equipment, together with any other amounts payable pursuant to Sections 10,
11 or 22 of the Lease, as the case may be, shall be, under any circumstance and
in any event, at least equal to the sum of (w) the amount of any payments then
required to be made respecting such Unit on account of the outstanding principal
of and interest on the Notes pursuant to the Loan Agreement plus (x) the amount
of any payments then required to be made respecting such Unit on account of the
outstanding Holder Advances to be repaid and yield on the Certificates pursuant
to the Trust Agreement plus (y) Fees which may be due under the Liquidity
Documents plus (z) any Break-Amount, in each case to the extent due on such
date.
6.9 Receipt, Distribution and Application of Income.
The Lessee has agreed pursuant to the terms of the Operative Agreements
to pay to the Agent until such time as the Loan Agreement has been discharged
pursuant to its terms, any and all Rent (provided, that such right to receive
Rent shall not include a right to receive Segregated Excepted Property but shall
include a right to receive all other Excepted Property) and any and all other
amounts of any kind or type under any of the Operative Agreements due and owing
the Lessor, the Owner Trustee, the Holders, the Agent, the Lenders, the Bank
Lenders, the Liquidity Facility Participants and the Liquidity Provider
(excluding such amounts referenced in the immediately preceding parenthetical
phrase in this sentence). The Lessee has agreed pursuant to the terms of the
Operative Agreements to pay to the Holders or such other Persons as are entitled
to the receipt thereof, as appropriate, the Segregated Excepted Property payable
to such Persons. Subject to the following sentences of this paragraph, the Agent
shall segregate amounts received with regard to whether such amounts relate to
Class A Equipment, Class B Equipment or Class C Equipment and promptly
thereafter, the Agent shall apply and allocate (to the appropriate account of
the Person entitled thereto as disclosed to the Agent in writing from time to
time, or such other place as such Person may designate), in accordance with the
terms of this Section 6.9 and based on the segregation of amounts with respect
to Class A Equipment, Class B Equipment and Class C Equipment and the related
Notes and Certificates, such amounts received from the Lessee and all other
payments, receipts and other consideration of any kind whatsoever received by
the Agent pursuant to this Agreement, any other Operative Agreement or otherwise
received by the Agent in connection with the Collateral or the Excepted
Property, as described in the paragraphs below. Notwithstanding the preceding
provisions of this Section 6.9, in connection with any disposition of Equipment,
upon the exercise of remedies in connection with any Event of Default and with
regard to all other amounts received by the Agent under the Operative Agreements
or otherwise with respect to the Equipment, the Agent shall apply all such
amounts received respecting each Class of Equipment in accordance with the terms
of this Section 6.9 to the obligations owed under the Operative Agreements
respecting such Class of Equipment (including without limitation to the
Certificates and Notes applicable to such Class of Equipment and to the
out-of-pocket costs and expenses of the Agent and/or the Owner Trustee in
connection with such disposition or exercise of remedies). After such
application, the Agent shall apply any and all remaining amounts in accordance
with the terms of this Section 6.9 ratably respecting the obligations owed under
the Operative Agreements with regard to the other Classes of Equipment.
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(a) Any such payment or amount identified as or deemed to be
Basic Rent shall be applied and allocated by the Agent first, ratably (based on
amounts then due and owing under the Notes and the Certificates) to the Lenders
and the Holders for application and allocation to the payment of interest on the
Notes and to the payment of accrued yield with respect to the Holder Advance,
thereafter to the principal of the Notes which is due and payable on such date
and to the portion of the Holder Advance which is due on such date; and second,
if no Lease Default or Lease Event of Default has occurred and is continuing,
any excess (if other than a prepayment) shall be paid to such Person or Persons
as the Lessee may designate; provided, that if a Lease Default or a Lease Event
of Default has occurred and is continuing, such excess (if any) shall instead be
held by the Agent until the earlier of (i) the first date thereafter on which no
Lease Default or Lease Event of Default shall be in effect (in which case such
payments or amounts shall then be made to such other Person or Persons as the
Lessee may designate) and (ii) the Maturity Date (or, if earlier, the date of
any acceleration of the Notes), in which case such amounts shall be applied and
allocated in the manner contemplated by Section 6.9(c).
(b) (i) Except as otherwise provided in Sections 6.9(b)(ii),
6.9(c) or 6.9(e), in the event that any prepayment of the Notes or Certificates,
in whole or in part, is required in accordance with the provisions of Section
2.10 of the Loan Agreement or Section 4.10 of the Trust Agreement, then any
amount received pursuant to Sections 10 or 11 of the Lease or otherwise shall in
each case be distributed and paid on a pro rata basis to the Lenders and the
Holders in the following order of priority:
first, ratably to the Owner Trustee and the Agent with respect to their
respective out-of-pocket costs and expenses regarding any such
prepayment or sale of the Equipment;
second, ratably (based on amounts then due and owing under the Notes
and Certificates) to the Lenders and the Holders as provided,
respectively, in Section 2.10 of the Loan Agreement and Section 4.10 of
the Trust Agreement;
third, ratably to the Owner Trustee and the Agent regarding any other
amounts owing to either such party under the Operative Agreements; and
fourth, the balance, if any, of such amount remaining thereafter shall
be distributed to the Owner Trustee for distribution to the Holders
ratably according to their respective Advance Amounts.
(ii) Notwithstanding the foregoing or anything else herein or
in any other Operative Agreement to the contrary, any Maximum Lessee
Risk Amount (made in whole or in part) shall be applied as set forth in
Section 6.9(c)(ii). Any insurance payment, requisition payment or other
amount received by the Agent that is not required to be paid over to
the Lessee or distributed shall be held by the Agent as security for
the obligations of the Lessee under the Lease and applied as set forth
therein or herein.
(c) (i) An amount equal to any payment identified as proceeds
of the sale (or lease upon the exercise of remedies) of the Equipment
or any portion thereof, whether pursuant to the exercise of remedies
under the Lease or in connection with the sale of the Equipment
pursuant to the end of Term termination option as provided in Section
22.2 of
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the Lease or otherwise or other such amounts with respect to
the Equipment for which an allocation is not otherwise set forth in
this Section 6.9, shall be applied and allocated by the Agent first,
ratably to the Owner Trustee and the Agent with respect to their
respective out-of-pocket costs and expenses regarding such sale or the
exercise of remedies, second, to the payment to the Holders of the
outstanding balance of the Holder Advances plus all accrued and
outstanding yield with respect to the Holder Advances, third, to the
payment of the principal of and interest on the Notes then outstanding,
fourth, to the payment of any other amounts owing to the Holders
hereunder or under any of the other Operative Agreements, fifth, to the
payment of any other amounts owing to the Lenders hereunder or under
any of the other Operative Agreements, sixth, ratably to the Owner
Trustee and the Agent regarding any other amounts owing to either such
party under the Operative Agreements and seventh, to the extent moneys
remain after application and allocation pursuant to clauses first
through sixth above, to the Lessee.
(ii) An amount equal to (A) any such payment identified as a
payment of all or a portion of the Maximum Lessee Risk Amount and (B)
any other amount payable upon any exercise of remedies after the
occurrence of a Lease Event of Default not covered by Section 6.9(c)(i)
above (including without limitation any amount received in connection
with an acceleration of the Notes which does not represent proceeds
from the sale, liquidation or release of the Equipment or any Unit),
shall be applied and allocated by the Agent first, to the Agent with
respect to its out-of-pocket costs and expenses regarding the exercise
of remedies, second, to the payment of the principal of and interest on
the Notes then outstanding, third, to the payment of the outstanding
balance of the Holder Advances plus all accrued and outstanding yield
with respect to the Holder Advances, fourth, to the payment of any
other amounts owing to the Lenders hereunder or under any of the other
Operative Agreements, fifth, to the payment of any other amounts owing
to the Holders hereunder or under any of the other Operative Agreements
and sixth, to the extent of any monies remaining after the application
pursuant to clauses first through fifth above, ratably to the Owner
Trustee and the Agent regarding any other amounts owing to either such
party under the Operative Agreements.
(d) (i) Except as otherwise provided in Section
6.9(c) or 6.9(e),
(A) An amount equal to any such payment identified as
Supplemental Rent received by the Agent for which provision as
to the application thereof is made in the Operative Agreements
shall be applied forthwith to the purpose for which such
payment was made in accordance with the terms thereof and
otherwise shall be applied and allocated by the Agent to the
payment of any amounts then owing to the Owner Trustee, the
Holders, the Lenders, the Bank Lenders, the Liquidity Facility
Participants, the Liquidity Provider, the Agent and such other
Persons (or any of them) (other than any such amounts payable
pursuant to the preceding provisions of this Section 6.9), as
shall be determined by the Agent in its reasonable discretion.
(B) Subject to Section 6.9(d)(ii), any payments
received and amounts realized by the Agent for which no
provision as to the application thereof is made in the Lease
or this Section 6.9 or otherwise in any Operative Agreement
shall be
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distributed forthwith by the Agent to the Owner Trustee for
distribution pursuant to the Trust Agreement.
(ii) Any payments received by the Agent for which provision as
to the application thereof is made in the Lease or any other Operative
Agreement but not elsewhere in this Agreement shall be applied to the
purposes for which such payments were made in accordance with the
provisions of the Lease or such other Operative Agreement, as the case
may be.
(iii) The Agent in its reasonable judgment shall identify the
nature of each payment or amount received by the Agent and apply and
allocate each such amount in the manner specified above.
(e) All amounts constituting Excepted Property received by the
Agent shall be paid by the Agent to the Person or Persons entitled thereto.
Ratable allocations under this Section 6.9 between the Agent and the
Owner Trustee shall be based upon the relative amount of costs, expenses and
other amounts owed to each such party at the particular time under the
particular provisions of the Operative Agreements.
6.10 Acceleration Upon Certain Events of Default.
Each of the parties hereto agrees that the occurrence of a Lease Event
of Default and the exercise of any remedies set forth in Section 15 of the Lease
with respect thereto shall immediately create a Loan Agreement Event of Default
and an acceleration of the Notes under the Loan Agreement and the Certificates
under the Trust Agreement.
SECTION 7. LESSEE'S INDEMNITIES
7.1 General Tax Indemnity.
(a) All payments by the Lessee to or on behalf of any
Indemnified Person in connection with the transactions contemplated by the
Operative Agreements shall be free of withholdings of any nature whatsoever (and
at any time that the Lessee is required to make any payment upon which any
withholding will be required, the Lessee shall pay an additional amount such
that the net amount actually received by the Person entitled to receive such
payment will, after any withholding, equal the full amount of the payment due)
and shall be free of expense to each Indemnified Person for collection or other
charges. The Lessee hereby assumes liability for, and does hereby agree, whether
or not any of the transactions contemplated hereby are consummated, to
indemnify, protect, save, defend, exonerate, pay and hold harmless each
Indemnified Person on an After-Tax Basis from any and all federal, state, local
and foreign taxes, fees, withholdings, levies, imposts, duties, assessments and
charges of any kind and nature whatsoever, together with any penalties, fines or
interest therein (herein called "Taxes") howsoever imposed, whether levied or
imposed upon or asserted against an Indemnified Person, the Lessee or the
Equipment by any federal, state or local government or taxing authority in the
United States, or by any taxing authority or governmental subdivision of a
foreign country, upon
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or with respect to (i) the Equipment, (ii) the manufacture, construction,
ordering, purchase, acceptance or rejection, ownership, delivery, leasing,
re-leasing, subleasing, possession, use, operation, maintenance, storage,
titling or re-titling, licensing or re-licensing, documentation, removal,
return, sale (including without limitation sale to the Lessee by an Indemnified
Person pursuant to the terms hereof) or other applications or dispositions of
the Equipment, (iii) the payments, receipts or earnings arising from the
Equipment, (iv) the payment of principal of, installments of Holder Advances,
interest, yield or Break-Amount or other amounts payable with respect to the
Notes, the Certificates, the Beneficial Interest or any interest or indebtedness
with respect to the Equipment or the Trust Estate, (v) the Overall Transaction
and (vi) the Operative Agreements, any document, instrument, agreement or
contract entered into in relation thereto or otherwise in relation to the
Equipment or any payments payable by the Lessee or to an Indemnified Person
pursuant to the Operative Agreements or any document, instrument, agreement or
contract entered into in relation thereto or otherwise in relation to the
Equipment or the transactions contemplated by the Operative Agreements.
(b) The foregoing indemnity in Section 7.1(a) hereof shall not
apply to any Taxes to the extent they result from the gross negligence or
willful misconduct of an Indemnified Person, or (subject to the last sentence of
Section 7.1(b)) to the extent such Taxes are based upon or measured by an
Indemnified Person's net income (other than Taxes that are, or are in the nature
of, sales, use, value added, transfer or property Taxes, and other than a
Covered Income Tax as hereinafter defined). For purposes of this Agreement, a
"Covered Income Tax" shall mean an income Tax (including without limitation a
Tax imposed upon gross income or receipts) imposed on an Indemnified Person by
any state, local or foreign taxing authority (excluding the United States
federal government) in whose jurisdiction an Indemnified Person (including
without limitation for this purpose all entities with which it is combined,
integrated or consolidated in such taxing authority's jurisdiction) would not
engage in business, would not maintain an office or other place of business,
would not otherwise be located therein, and would not otherwise be subject to
such taxing authority but for an Indemnified Person's role in the Operative
Agreements and the transactions contemplated thereby, with respect to the
Equipment, its manufacture, construction, ordering, purchase, acceptance or
rejection, ownership, delivery, leasing, re-leasing, subleasing, possession,
use, operation, maintenance, storage, titling or re-titling, licensing or
re-licensing, documentation, removal, return, sale (including without limitation
sale to the Lessee by an Indemnified Person pursuant to the terms hereof) or
other applications or dispositions thereof, or the presence of the Lessee in
such jurisdiction. The foregoing indemnity in Section 7.1(a) shall apply to any
Taxes (upon or with respect to any of the enumerated matters of Section 7.1(a))
imposed on the Owner Trustee (including without limitation those based upon or
measured by the Owner Trustee's net income (or other such Taxes that are, or are
in the nature of, a Tax on net income) other than such Taxes based on or
measured by any fees or compensation received by the Owner Trustee for services
rendered in connection with the transactions contemplated hereby).
(c) Each Indemnified Person shall furnish the Lessee with
copies of any requests for information received by such Indemnified Person from
any taxing authority relating to any Taxes with respect to which the Lessee is
required to indemnify hereunder, and if a claim is made against such Indemnified
Person for any such Taxes, with respect to which the Lessee is liable for a
payment or indemnity hereunder, such Indemnified Person shall give the Lessee
notice in writing at least 30 days (or if such Indemnified Person receives
notice of such claim within 30 days of the date a response is required, promptly
upon such receipt) prior to the expiration of the
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time period for responding to such claim (but any failure to make such
notification shall not relieve the Lessee of its obligation to indemnify the
Indemnified Person unless such failure materially and adversely impairs the
contest of such claim). The Lessee may, at its sole cost and expense, either in
its own name or in the name of such Indemnified Person, contest the validity,
applicability or amount of any such Taxes by means of a Permitted Contest;
provided, however, such Indemnified Person shall in all cases control all such
contests (including without limitation the right to terminate any such contest
in its reasonable discretion) except as set forth in the next following proviso;
provided, further, that (i) if such contest involves a Tax other than a Tax on
net income (or other such Taxes that are, or are in the nature of, a Tax on net
income) and can be pursued independently from any other proceeding involving a
Tax liability of such Indemnified Person, the Indemnified Person, at the
Lessee's request, shall allow the Lessee to conduct and control such contest and
(ii) in the case of any contest, the Indemnified Person may request the Lessee
to conduct and control such contest (with counsel to be selected by the Lessee
and consented to by the Indemnified Person, such consent not to be unreasonably
withheld; provided, further, that any Indemnified Person may retain separate
counsel, the reasonable fees and expenses of which will be the expense of the
Lessee in the event of a material conflict of interest). The party controlling
any contest shall consult in good faith with the non-controlling party and shall
keep the non-controlling party reasonably informed as to the conduct of such
contest; provided, further, that all decisions ultimately shall be made in the
discretion of the controlling party. The Lessee shall pay on demand by such
Indemnified Person, and save such Indemnified Person harmless against, any and
all losses, judgments, decrees and costs (including without limitation all
reasonable attorneys' and accountants' fees and expenses) in connection with any
Permitted Contest and shall promptly after the final settlement, compromise or
determination (including without limitation any appeals) of such Permitted
Contest, fully pay and discharge the amounts which shall be levied, assessed,
charged or imposed or be determined to be payable therein or in connection
therewith, together with all penalties, fines, interest, costs and expenses
thereof or in connection therewith, and perform all acts, the performance of
which shall be ordered or decreed as a result thereof. If an Indemnified Person
shall obtain a refund or reimbursement of any amount paid by the Lessee pursuant
to this Section 7.1, such Indemnified Person shall promptly pay to the Lessee
the amount of such refund or reimbursement, together with the amount of any
interest and penalty reimbursements (to the extent that Lessee has previously
paid such penalty) actually received by it on account of such refund or
reimbursement. Notwithstanding the foregoing, the Indemnified Person shall not
be required to contest any claim for Taxes unless (a) the Lessee shall advance
any Tax amount or other amount required to be paid in connection with any such
Permitted Contest to such Indemnified Person on an After-Tax Basis and an
interest-free basis, (b) no Lease Default or Lease Event of Default has occurred
and is continuing at such time, (c) in the case of a claim that must be pursued
in the name of an Indemnified Person, the amount of the claim exceeds $25,000,
(d) the Lessee shall acknowledge in writing its obligation to indemnify the
Indemnified Person in the event such Permitted Contest is not successful, and
(e) the Indemnified Person shall not be required to contest any adverse judicial
decision unless it shall have received an opinion from independent tax counsel
(at the expense of the Lessee) to the effect that substantial authority (within
the meaning of Internal Revenue Code Section 6662) exists to contest such claim
(but the Indemnified Person shall not be required to appeal an adverse
determination to the U.S. Supreme Court).
(d) The Lessee will promptly notify the appropriate
Indemnified Person of all reports or returns required to be made with respect to
any Taxes with respect to which the Lessee
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is required to indemnify hereunder and will promptly provide such Indemnified
Person with all information necessary for the making and timely filing of such
reports or returns by such Indemnified Person. If an Indemnified Person requests
that any such reports or returns be prepared and filed by the Lessee, the Lessee
will prepare and file the same if permitted by applicable Law to file the same,
and if not so permitted, the Lessee shall prepare such reports or returns for
signature by such Indemnified Person, and shall forward the same, together with
immediately available funds for payment of any Taxes or other amounts due, to
such Indemnified Person, at least 10 days in advance of the date such payment is
to be made. Upon written request, the Lessee shall furnish an Indemnified Person
with copies of all paid receipts or other appropriate evidence of payment for
all Taxes paid by the Lessee pursuant to this Section 7.1. To the extent any
Indemnified Person receives copies of reports or returns required to be made
regarding any Taxes with respect to which the Lessee is required to indemnify
hereunder, such Indemnified Person shall provide copies of the same to the
Lessee and will use all commercially reasonable efforts to assist the Lessee
with the preparation of such reports or returns; provided, the Lessee shall be
responsible for all out-of-pocket expenses of such Indemnified Person regarding
the preparation of such reports or returns.
(e) The provisions of this Section 7.1 and all of the
indemnities and obligations of the Lessee contained in this Section 7.1 shall
apply from the date of execution of this Agreement and shall continue in full
force and effect notwithstanding the expiration or earlier termination of this
Agreement or any other documents, instruments, agreements or contracts entered
into in relation hereto or otherwise in relation to the Equipment or any
component of the Equipment, and are expressly made for the benefit of, and shall
be enforceable by, each Indemnified Person.
7.2 General Indemnification and Waiver of Certain Claims.
The Lessee hereby assumes liability for, and does hereby agree, whether
or not any of the transactions contemplated hereby are consummated, to
indemnify, protect, save, defend, exonerate, pay and hold harmless each
Indemnified Person on an After-Tax basis from and against any and all
obligations, fees, liabilities, losses, interest, damages, punitive damages,
penalties, fines, claims, demands, actions, suits, judgments, costs and expenses
(collectively "Expenses"), including without limitation reasonable legal fees
and expenses payable pursuant to Section 2.5(a) (including without limitation
such reasonable legal fees and expenses incurred in connection with the
enforcement and/or modification of this Agreement or any other Operative
Agreement), of every kind and nature whatsoever imposed on, incurred by, or
asserted against any Indemnified Person, in any way relating to or arising out
of (a) the Equipment, including without limitation the manufacture,
construction, ordering, purchase, acceptance or rejection, ownership, delivery,
leasing, re-leasing, subleasing, possession, use, operation, maintenance,
storage, titling or re-titling, licensing or re-licensing, documentation,
removal, return, sale (including without limitation sale by an Indemnified
Person to the Lessee pursuant to the terms hereof) or other applications or
dispositions of the Equipment, including without limitation any of such as may
arise from (i) loss or damage to any property or death or injury to any Person,
(ii) patent or latent defects in the Equipment (whether or not discoverable by
the Lessee or any Indemnified Person), (iii) any claims based on strict
liability in tort or otherwise and (iv) any claims based on patent, trademark or
copyright infringement and any claims relating to any Environmental Violation,
Hazardous Material or otherwise based on liability arising under any
Environmental Law or other pollution
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control Law, (b) any failure on the part of the Lessee to perform or comply with
any of the terms of the Lease, any other Operative Agreement or any document,
instrument, agreement or contract entered into in relation hereto or otherwise
in relation to the Equipment, (c) any claims, Liens or legal processes regarding
such Indemnified Person's title to or interest in the Equipment (except as such
arise in connection with Lessor's Liens), (d) any representation or warranty
made by the Lessee under or in connection with this Agreement, any other
Operative Agreement or any certificate or report delivered by the Lessee
pursuant hereto which shall have been false or incorrect in any material respect
when made or deemed made, or (e) the Operative Agreements (including without
limitation Section 9 of this Agreement). The Lessee shall not be required to
indemnify an Indemnified Person for any claims resulting from acts which would
constitute the willful misconduct or gross negligence of such Indemnified
Person. The Lessee shall give each Indemnified Person prompt notice of any
occurrence, event or condition known to the Lessee as a consequence of which any
Indemnified Person is or is reasonably likely to be entitled to indemnification
hereunder. The indemnification provided in this Section 7.2 shall specifically
apply to and include claims or actions brought by or on behalf of employees of
the Lessee notwithstanding any immunity to which the Lessee may otherwise be
entitled under any industrial or worker's compensation Laws. The Lessee shall
promptly upon request of any such Indemnified Person (but in any event within 30
days of such request) reimburse such Indemnified Person for amounts expended by
it in connection with any of the foregoing or pay such amounts directly. The
Lessee shall be subrogated to an Indemnified Person's rights in any matter with
respect to which the Lessee has actually reimbursed such Indemnified Person for
amounts expended by it or has actually paid such amounts directly pursuant to
this Section 7.2.
In case any action, suit or proceeding is brought against any
Indemnified Person in connection with any claim indemnified against hereunder,
such Indemnified Person will, after receipt of notice of the commencement of
such action, suit or proceeding, notify the Lessee thereof, enclosing a copy of
all papers served upon such Indemnified Person; provided, failure to deliver
such notice will not impair the rights of indemnification of such Indemnified
Person unless such failure by the Indemnified Person materially and adversely
affects the ability of the Lessee to defend such action, suit or proceeding. The
Lessee shall, at its sole cost and expense, assume control of such action, suit
or proceeding (with counsel to be selected by the Lessee and consented to by the
Indemnified Person, such consent not to be unreasonably withheld).
Notwithstanding any of the foregoing to the contrary, the Lessee shall not be
entitled to pursue any such action, suit or proceeding if (i) a Lease Event of
Default shall have occurred and be continuing, (ii) such action, suit or
proceeding will involve a material risk of the sale, forfeiture or loss of, or
the creation of any lien on the Equipment unless the Lessee shall have posted a
bond or other security reasonably satisfactory to the Owner Trustee and the
Holders in respect to such risk, (iii) such proceedings, in the good faith
opinion of the Indemnified Person, entail any risk of criminal liability to such
Indemnified Person or (iv) a conflict of interest exists between the Indemnified
Person and the Lessee with respect to such action, suit or proceeding. The
Indemnified Person may participate at its own expense and with its own counsel
in any judicial proceeding controlled by the Lessee pursuant to the preceding
provisions; provided, in the event of a material conflict of interest between
the Lessee and such Indemnified Person, the Lessee shall pay the costs and
expenses of counsel for such Indemnified Person.
Each Indemnified Person shall supply the Lessee with such information
reasonably requested by the Lessee as is necessary or advisable for the Lessee
to control or participate in any
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proceeding to the extent permitted by this Section 7.2. Unless a Lease Event of
Default shall have occurred and be continuing, each Indemnified Person agrees
not to enter into a settlement or other compromise with respect to any such
action, suit or proceeding without the prior written consent of the Lessee,
which consent shall not be unreasonably withheld or delayed, unless the
Indemnified Person waives its right to be indemnified with respect to such
action, suit or proceeding. The Lessee shall supply the Indemnified Person with
such information reasonably requested by the Indemnified Person as is necessary
or advisable for the Indemnified Person to control or participate in any
proceeding to the extent permitted by this Section 7.2. In addition, the Lessee
shall be subrogated to the rights of the Indemnified Person against any
manufacturer or maintenance provider with respect to any such action, suit or
proceeding with respect to which the Lessee has actually reimbursed such
Indemnified Person for amounts expended by it or has actually paid such amounts
directly pursuant to this Section 7.2; provided, further to do so will not
impair the rights of indemnification of such Indemnified Person unless the
failure by the Indemnified Person to deliver such notice materially and
adversely affects the ability of the Lessee to defend such action, suit or
proceeding. The provisions of this Section 7.2, and all of the indemnities and
the obligations of the Lessee under this Section 7.2, shall apply from the date
of the execution of this Agreement and shall survive the expiration or earlier
termination of this Agreement and all documents, instruments, agreements and
contracts entered into in relation hereto or otherwise in relation to the
Equipment and are expressly made for the benefit of, and shall be enforceable
by, each Indemnified Person.
SECTION 8. BANK LENDER ASSIGNMENT
8.1 Bank Assignment
(a) At any time from the Interim Term Commencement Date until
the Bank Commitment Expiration Date, in the event that on an Acceptance Date,
the Initial Lender does not make a Loan requested by the Owner Trustee, then at
any time, the Lessee (on behalf of the Owner Trustee) shall have the right to
require the Initial Lender to assign its interest in the Loans, the Notes and
all of its right, title, interest and obligations under the Operative Agreements
in whole to the Bank Lenders pursuant to this Section 8.1(a). In addition, at
any time on or prior to the Bank Commitment Expiration Date, if the Initial
Lender elects to give notice to the Owner Trustee that it desires to assign its
interest in the Loans, the Notes and all of its right, title, interest and
obligations under the Operative Agreements to the Bank Lenders, the Owner
Trustee hereby requests and directs, and the Lessee hereby agrees to such
request and direction, that the Initial Lender assign its interest in the Loans,
the Notes and all of its right, title, interest and obligations under the
Operative Agreements in whole to the Bank Lenders and the Owner Trustee hereby
agrees to pay the amounts described in Section 8.2(b) below (with funds provided
by the Lessee as Supplemental Rent). An assignment by either the Initial Lender
or Bank Lender of an interest in the Loans, the Notes and the related rights
under the Operative Agreements is referred to herein as a "Bank Assignment," and
the effective date of any such Bank Assignment is referred to herein as the
"Effective Date." Upon any such election by the Initial Lender or any such
request by the Owner Trustee, the Initial Lender may effect a Bank Assignment
and the Bank Lenders shall accept such Bank Assignment without setoff,
counterclaim or defenses of any kind and shall assume all of the Initial
Lender's obligations with respect to the Loans, the Notes and all of the Initial
Lender's right, title, interest and obligations under the Operative Agreements.
Notwithstanding the foregoing, no Bank Lender shall be obligated to effectuate a
Bank
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Assignment unless the Agent shall have certified in writing to such Bank
Lender that the Net Receivables Balance equals or exceeds the Net Investment on
the related Effective Date. In connection with any Bank Assignment by the
Initial Lender, each Bank Lender shall, on the related Effective Date, pay to
the Initial Lender the amount specified in Section 8.2(a) below. Upon any
assignment by the Initial Lender to the Bank Lenders contemplated hereunder, the
Initial Lender shall cease to fund any additional Loans.
(b) The failure of any Bank Lender to perform any obligations
required by it under this Section 8.1 shall not relieve any other Bank Lender of
any of its obligations hereunder.
(c) It is expressly understood and agreed by the Initial
Lender, the Bank Lenders and the other parties hereto that the no Bank
Assignment may be effected hereunder, unless, following the related Effective
Date, the ratio of each of the assignee's Lender Class A Commitment, Lender
Class B Commitment and Lender Class C Commitment, respectively, to the
assignee's Lender Class Commitment, shall equal the corresponding ratio of each
of the assignor's Lender Class A Commitment, Lender Class B Commitment and
Lender Class C Commitment, respectively, to the assignor's Lender Class
Commitment prior to the related Effective Date. In addition, each Bank Lender
agrees that such Bank Lender may not effect a Bank Assignment hereunder without
also simultaneously assigning to the assignee of such Bank Assignment an equal
portion of its interest in the Liquidity Purchase Agreement.
(d) No Bank Lender may make a Bank Assignment to any Person
unless approved in writing by the Owner Trustee, the Lessee, the Initial Lender
and the Agent; provided however, the consent of the Owner Trustee and the Lessee
shall not be required if a Default or Event of Default has occurred and is
continuing; provided, further, the consent of the Initial Lender shall not be
required if the Initial Lender is not a holder of a Note. In the case of a Bank
Assignment by the Initial Lender pursuant to Section 8.1(a) or by a Bank Lender
to another Person, the assignor shall deliver to the assignee(s) an Assignment
and Assumption Agreement in substantially the form of Exhibit E attached hereto
(the "Assignment Agreement"), duly executed, assigning to the assignee a pro
rata interest in the Loans, the Notes and the assignor's rights and obligations
hereunder and the assignor shall promptly execute and deliver all further
instruments and documents, and take all further action, that the assignee may
reasonably request, in order to protect, or more fully evidence the assignee's
right, title and interest in and to such interest and to enable the Agent, on
behalf of such assignee, to exercise or enforce any rights hereunder and under
the other Operative Agreements to which such assignor is or, immediately prior
to such assignment, was a party; provided, however, the assignor shall not
relinquish (A) any rights arising prior to such assignment or (B) any rights of
indemnification, rights for reimbursement for increased costs or other similar
rights whenever arising. On the Effective Date of any Bank Assignment, (i) the
assignee shall be a Bank Lender for all purposes of this Participation Agreement
and the other Operative Agreements to which the Bank Lenders are parties as if
the assignee were originally a party thereto and the assignee shall have all of
the rights and obligations of the assignor hereunder and under the other
Operative Agreements to which such assignor is or, immediately prior to such
Bank Assignment, was a party with respect to such interest for all purposes of
this Participation Agreement and under the other Operative Agreements to which
such assignor is or, immediately prior to such Bank Assignment, was a party (it
being understood that the Bank Lenders, as assignees, shall be obligated to fund
Loans in accordance with the terms of the Loan Agreement and this Participation
Agreement, notwithstanding that the Initial Lender
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was not so obligated) and (ii) the assignor shall relinquish its rights with
respect to such Bank Assignment for all purposes of this Participation Agreement
and under the other Operative Agreements to which such assignor is or,
immediately prior to such assignment, was a party. No Bank Assignment shall be
effective unless a fully executed copy of the related Assignment and Assumption
Agreement shall have been delivered to the Agent, the Owner Trustee, the Lessee
and the Initial Lender. All costs and expenses of the Agent and the assignor and
assignee incurred in connection with any Bank Assignment shall be borne by the
Owner Trustee (with funds provided by the Lessee as Supplemental Rent) and not
by the assignor or any assignee.
(e) By executing and delivering an Assignment and Assumption
Agreement, the assignor and assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Assumption Agreement, the assignor makes no representation
or warranty and assumes no responsibility with respect to any warranties or
representations made in or in connection with this Participation Agreement, the
other Operative Agreements or any other instrument or document furnished
pursuant hereto or thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value or this Participation Agreement, the other
Operative Agreements or any such other instrument or document; (ii) the assignor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Owner Trustee or the Lessee or the performance
or observance by the Owner Trustee or the Lessee of any of their respective
obligations under this Participation Agreement, the other Operative Agreements
or any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee confirms that it has received a copy of this Participation
Agreement, the other Operative Agreements and such other instruments, documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption Agreement and to purchase
such interest; (iv) such assignee shall, independently and without reliance upon
the Agent, or any of its Affiliates, or the assignor and based on such
agreements, documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Participation Agreement and the other Operative Agreements; (v) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Participation Agreement, the other
Operative Agreements and any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto and to enforce
its respective rights and interests in and under this Participation Agreement,
the other Operative Agreements, the Loans and the Notes; (vi) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Participation Agreement and the other
Operative Agreements are required to be performed by it as the assignee of the
assignor; and (vii) such assignee covenants and agrees that prior to the date
which is one year and one day after the payment in full of all outstanding
Commercial Paper or other indebtedness of the Initial Lender, it will not
institute against, or join any Person in instituting against, the Initial Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States relating to the Overall Transaction.
(f) After any Bank Assignment by the Initial Lender (and the
payment of all amounts owing to the Initial Lender in connection therewith), all
rights of the Initial Lender set
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forth herein shall be deemed to be afforded to the Agent on behalf of the Bank
Lenders instead of the Initial Lender.
8.2 Purchase Price.
(a) On the Effective Date of a Bank Assignment by the Initial
Lender, each Bank Lender shall pay to the Initial Lender at an account to be
designated by the Initial Lender to such Bank Lender, in immediately available
funds, as the purchase price for the Bank Assignment, its pro rata portion
(based on the Lender Class Commitments) of the outstanding principal amount of
the Notes plus any interest or discount on any Commercial Paper outstanding on
the Effective Date, in each case to accrue through the then current maturity
date of such Commercial Paper (the "CP Purchase Price"); provided, however, that
the CP Purchase Price paid by any Bank Lender shall not exceed an amount equal
to (x) a fraction, the numerator of which is the Bank Lender's Lender Class
Commitment and the denominator of which is the aggregate Lender Class
Commitments of all of the Bank Lenders and (y) 102% of the outstanding principal
amount of Commercial Paper on the Effective Date (as to any Bank Lender, the
"Maximum Note Commitment Amount"). In the event that the Effective Date of any
such Bank Assignment is not also a date upon which funds shall be required to
repay maturing Commercial Paper which remains outstanding on the Effective Date
(each such date a "Tranche End Date"), then the Initial Lender shall hold the CP
Purchase Price paid by any Bank Lender and invest such amounts in Permitted
Investments as determined by the Initial Lender. On each Tranche End Date the
Initial Lender shall apply the amounts held by it in respect of the CP Purchase
Price to pay such maturing Commercial Paper. On the applicable Tranche End Date,
the Initial Lender shall apply the amounts held by it in respect of the CP
Purchase Price to pay such maturing Commercial Paper. On the last Tranche End
Date relating to Commercial Paper outstanding on the Effective Date, the Initial
Lender shall return to the Lessee any proceeds of such investment which are not
required to pay the principal and interest or discount due on maturing
Commercial Paper. Concurrently with the payment of the CP Purchase Price to the
Initial Lender, the Initial Lender shall (except as set forth in the preceding
sentence) have no further obligations or rights from and after such Effective
Date, to the extent of the Bank Assignment being effected on such Effective
Date, under the Operative Agreements; provided, further, that following the
payment of the CP Purchase Price hereunder by any Bank Lender, any unfunded
portion of the Maximum Note Commitment Amount of such Bank Lender shall be
terminated.
(b) In connection with a Bank Assignment by the Initial Lender
with respect to any Loan, the Owner Trustee hereby agrees to pay (with funds
provided by the Lessee as Supplemental Rent) to the Agent, for the account of
the Bank Lenders on the Payment Date (based on the interest period for such
Loan) immediately following the Effective Date, (i) the interest computed at the
LP Rate on the CP Purchase Price for the period from and including the Effective
Date to but excluding such Payment Date plus (ii) an amount equal to the
difference between the CP Purchase Price and the outstanding principal balance
of the Loans as of the Effective Date. To the extent that the Owner Trustee
fails to make payment of the amounts referred to in the preceding sentence on
the Effective Date, the principal amount of the Loans held by the Bank Lenders
shall be increased by such amount. In addition to the foregoing, in connection
with any Bank Assignment by the Initial Lender, the Owner Trustee shall pay
(with funds provided by the Lessee as Supplemental Rent) to the Agent, for the
account of the Initial Lender, an aggregate amount equal to all Fees and other
amounts (except for principal of and
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interest on the Notes) due and owing to the Initial Lender on and as of the
related Effective Date. All reasonable out-of-pocket costs, expenses and fees of
the Initial Lender and the Bank Lenders in connection with any Bank Assignment
by the Initial Lender shall be paid by the Owner Trustee (with funds provided by
the Lessee as Supplemental Rent) within 30 days after demand.
(c) The purchase price payable in connection with any Bank
Assignment by a Bank Lender shall be as agreed separately between the assignor
and the assignee.
8.3 Bank Lender Renewal.
(a) The commitment of the Bank Lenders to effectuate the Bank
Assignment shall expire on the Basic Term Commencement Date unless (i) such day
is not a Business Day, in which case the commitment shall expire on the next
succeeding Business Day or (ii) the commitment is extended in accordance with
Section 8.3(b) (such expiration date, as it may be extended in accordance with
Section 8.3(b) is called the "Bank Commitment Expiration Date").
(b) On the day which is ten Business Days prior to November 10
(or the next occurring Business Day) of each year, commencing with November 10,
1997, the Lessee (on behalf of the Owner Trustee) shall deliver to each Bank
Lender that has not previously effectuated its Bank Assignment a Notice of
Request for Renewal (a form of which is attached hereto as Exhibit F) requesting
that each Bank Lender renew its commitment to effectuate its Bank Assignment for
an additional 364 days commencing on the then effective Bank Commitment
Expiration Date and expiring 364 days after the then effective Bank Commitment
Expiration Date.
(c) Each Bank Lender shall, in its sole discretion, decide
whether or not to renew its commitment to effectuate its Bank Assignment for an
additional 364 day period. Each Bank Lender shall deliver to the Owner Trustee,
the Lessee, the Agent and the Initial Lender on or before December 1 of each
year, commencing December 1, 1997, a signed counterpart of its Notice of Request
for Renewal indicating whether or not it desires to renew its commitment to
effectuate its Bank Assignment. If a Bank Lender has not returned a signed
counterpart of the Notice of Request for Renewal by December 1 of the related
year, then such Bank Lender shall be deemed to have rejected the proposed
renewal.
(d) If one or more Bank Lenders shall have rejected or shall
be deemed to have rejected the Notice of Request for Renewal (each, a
"Non-Renewing Bank Lender"), then the Lessee may request that the commitment of
each Non-Renewing Bank Lender to effectuate its Bank Assignment be assigned to
(i) one or more Bank Lenders that have consented to the requested renewal (each,
a "Renewing Lender") and/or (ii) one or more other financial institutions (each,
a "New Bank Lender"), and together with the Renewing Lenders, the "Replacement
Lenders"), provided, that such New Bank Lender is acceptable to the Initial
Lender, the Lessee and the Agent and such New Bank Lender's short term debt
shall be rated at least "A-2" and "P-2" from S&P and Moody's, respectively, and
which shall not be so rated with negative credit implications (such rating
requirement, the "New Bank Lender Rating Requirement"). Each prospective
Replacement Lender requested by the Lessee shall have the right to accept or
reject such request, in whole or in part, on or before January 1 of each year,
by executing and delivering an Assignment and Assumption Agreement substantially
in the form attached hereto as Exhibit E.
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(e) If the commitment of a Non-Renewing Bank Lender is not
assigned to a Replacement Lender, such Non-Renewing Bank Lender shall effectuate
the Bank Assignment in accordance with the terms of Section 8.5 and pay the
purchase price in connection therewith in accordance with Section 8.2.
(f) In the event that a Replacement Lender replaces a Bank
Lender pursuant to this Section 8.3, such Replacement Lender shall become a Bank
Lender for all purposes under this Participation Agreement and each of the other
Operative Agreements.
8.4 Downgrade of Bank Lender.
If at any time prior to an Effective Date, the short term debt
rating of a Bank Lender shall be "A-2" or "P-2" from S&P or Moody's,
respectively (an "A-2/P-2 Event"), with negative credit implications, such Bank
Lender, upon request of the Agent, shall, within 30 days of such request, assign
its rights and obligations hereunder to a Replacement Lender (in the case of a
New Bank Lender, such New Bank Lender shall satisfy the New Bank Lender Rating
Requirement). If at any time prior to an Effective Date, the short term debt
rating of a Bank Lender shall be "A-3" or "P-3", or lower, from S&P or Moody's,
respectively (or such rating shall have been withdrawn by S&P or Moody's) (an
"A-3/P-3 Event"), such Bank Lender, upon request of the agent, shall, within
five Business Days of such request, assign its rights and obligations under the
Bank Assignment to a Replacement Lender (in the case of a New Bank Lender, such
New Bank Lender shall satisfy the New Bank Lender Rating Requirement).
8.5 Funding of Bank Assignment and Term Commitment.
(a) In the event that (i) all of the obligations of a
Non-Renewing Bank Lender are not assigned to a Replacement Lender as provided in
Section 8.3, or (ii) a Replacement Lender is not selected to replace a Bank
Lender the short term debt rating of which is down-graded as described in
Section 8.4 (such Bank Lender whose rating is down-graded is called an "Affected
Bank Lender"), then the Non-Renewing Bank Lender or Affected Bank Lender, as the
case may be, shall be required to effectuate its Bank Assignment and pay the
purchase price therefor in accordance with Section 8.2 (x) in the case of a
Non-Renewing Bank Lender, on the then applicable Bank Commitment Expiration Date
and (y) in the case of an Affected Bank Lender, (i) on the date which is 30 days
after request from the Agent with respect to an A-2/P-2 Event and (ii) on the
date which is five days after request from the Agent with respect to an A-3/P-3
Event. In the event that the Owner Trustee fails to deliver the Notice of
Request for Renewal described in Section 8.3(b), then each Bank Lender shall be
required to effectuate its Bank Assignment and to pay the purchase price
therefor on the then applicable Bank Commitment Expiration Date.
(b) In the event that any Bank Assignment is effectuated
pursuant to Section 8.1(a) or Section 8.5(a), then all amounts due and owing to
all Lenders under or in connection with the Notes shall become due and payable
on the Bank Lender Termination Date. The "Bank Lender Termination Date" shall
mean the earlier of (i) the date the Lease terminates in accordance with the
terms thereof and (ii) (A) the date that is three years from the Basic Term
Commencement Date (for the Class A Notes), (B) the date that is five years from
the Basic Term
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Commencement Date (for the Class B Notes) and (C) the date that is five years
from the Basic Term Commencement Date unless the Bank Commitment Expiration Date
has been extended and in such case to the date of extension, but in no event
beyond seven years from the Basic Term Commencement Date (for the Class C
Notes).
SECTION 9. YIELD PROTECTION; TAXES; COMPENSATION.
9.1 Yield Protection Provisions.
(a) If, after the date hereof, any Participant has determined
that the adoption or the becoming effective of, or any change in, or any change
by any Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof in the interpretation or
administration of, any applicable Law regarding capital adequacy, or compliance
by such Participant or its parent with any request or directive regarding
capital adequacy (whether or not having the force of Law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Participant's or its parent's capital or assets as a
consequence of such Participant's obligations hereunder to a level below that
which such Participant or its parent could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such
Participant's or its parent's policies with respect to capital adequacy), then,
upon notice from such Participant to the Owner Trustee, the Owner Trustee shall
be obligated to pay (with funds provided by the Lessee as Supplemental Rent) to
such Participant such additional amount or amounts as will compensate such
Participant for such reduction. Each determination by such Participant of
amounts owing under this Section shall, absent manifest error, be conclusive and
binding on the parties hereto.
(b) Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
any Participant to maintain its LIBOR Loans, CD Loans, LIBOR Holder Advances or
CD Holder Advances, as the case may be, as contemplated by this Agreement, (a)
such Participant shall promptly give written notice of such circumstances to the
Owner Trustee, the Agent and the Lessee (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such
Participant to continue LIBOR Loans, CD Loans, LIBOR Holder Advances or CD
Holder Advances, as the case may be, as such shall forthwith be canceled and (c)
the outstanding LIBOR Loans, CD Loans, LIBOR Holder Advances or CD Holder
Advances, as the case may be, shall be converted automatically to Reference Rate
Loans or Reference Rate Holder Advances, as the case may be, on the next
succeeding Interest Payment Date or Yield Payment Date, as the case may be, or
within such earlier period as required by Law until such time as such
Participant shall notify the Owner Trustee, the Agent and the Lessee that it is
no longer unlawful for such Participant to maintain LIBOR Loans, CD Loans, LIBOR
Holder Advances or CD Holder Advances, as the case may be, whereupon such
Participant's obligation to make LIBOR Loans, CD Loans, LIBOR Holder Advances or
CD Holder Advances of such type shall be restored. If any such conversion of any
LIBOR Loan, CD Loan, LIBOR Holder Advance or CD Holder Advance, as the case may
be, occurs on a day which is not an Interest Payment Date or Yield Payment Date,
as the case may be, the Owner Trustee shall pay (with funds provided by the
Lessee as Supplemental Rent) to such Participant such amounts, if any, as may be
required pursuant to Section 9.3.
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(c) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof applicable to any Participant,
or compliance by any Participant with any request or directive (whether or not
having the force of Law) from any central bank or other Governmental Authority,
in each case made subsequent to the Closing Date (or, if later, the date on
which a Participant becomes a Participant):
(i) shall subject such Participant to any Tax of any
kind whatsoever with respect to the Operative Agreements, ownership,
maintenance, or financing of the Loans or Advances or payments of other
amounts due, as the case may be, made by it or change the basis of
taxation of payments to such Participant in respect thereof (except for
Non-Excluded Taxes covered by Section 9.2 hereof (including
Non-Excluded Taxes imposed solely by reason of any failure of such
Participant to comply with its obligations under Section 9.2(b) hereof)
and changes in Taxes measured by or imposed upon the overall net
income, or franchise Tax (imposed in lieu of such net income Tax), of
such Participant or its applicable lending office, or any branch, or
any affiliate thereof);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
(including without limitation any requirement imposed by the Board of
Governors of the Federal Reserve System) against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Participant which is not otherwise included in the
determination of the LIBOR Rate or CD Rate hereunder;
(iii) shall impose on such Participant any other
condition (excluding any Tax of any kind whatsoever); or
(iv) shall impose upon any Indemnified Party any
other expense (including without limitation reasonable attorneys' fees
and expenses, and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Agreement, the
other Operative Agreements, the ownership, maintenance or financing of
the Loans or Advances or payments of amounts due under the Operative
Agreements or any obligation of any Indemnified Party to advance funds
under the Operative Agreements, under the Liquidity Documents, the
Loans by the Bank Lenders, the Advances by the Holders or otherwise in
respect of this Agreement, the other Operative Agreements or the
ownership, maintenance or financing of the Loans or the Advances;
and the result of any of the foregoing in (i), (ii) or (iii) above is to
increase the cost to such Participant, by an amount which such Participant deems
to be material, of continuing or maintaining the LIBOR Loans, CD Loans, LIBOR
Holder Advances or CD Holder Advances, as the case may be, then, upon notice to
the Owner Trustee from such Participant, through the Agent, in accordance
herewith, the Owner Trustee shall be obligated to promptly pay (with funds
provided by the Lessee as Supplemental Rent) to such Participant, within 30 days
after its demand, any additional amounts necessary to compensate such
Participant for such increased cost or reduced amount receivable, provided, that
the Lessee (on behalf of the Owner Trustee) may elect to convert the LIBOR
Loans, CD Loans, LIBOR Holder Advances or CD Holder Advances, as the case may
be, made by such Participant hereunder to Reference Rate Loans or Reference
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Rate Holder Advances, as the case may be, by giving the Holders and the Agent at
least one Business Day's notice of such election, in which case the Owner
Trustee shall promptly pay (with funds provided by the Lessee as Supplemental
Rent) to such Participant, upon its demand, without duplication, such amounts,
if any, as may be required pursuant to Section 9.3.
(d) If a Participant becomes entitled to claim any additional
amounts pursuant to this Section 9, it (or the Agent, in the case of the Initial
Lender) shall provide prompt written notice thereof to the Owner Trustee,
through the Agent, certifying (x) that one of the events described in this
Section 9.1 has occurred and describing in reasonable detail the nature of such
event, (y) as to the increased cost or reduced amount resulting from such event
and (z) as to the additional amount demanded by such Participant and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable pursuant to this Section 9.1 submitted by
such Participant to the Owner Trustee, to the Agent, shall be conclusive and
binding on the parties hereto in the absence of manifest error.
9.2 Taxes.
(a) Except as provided below in this Section 9.2, all payments
made by the Owner Trustee under this Agreement, any Operative Agreements, the
Notes and the Certificates, as the case may be, shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future
income, stamp or other Taxes, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding Taxes measured by or imposed upon the overall net income of
any Participant or its applicable lending office, or any branch or affiliate
thereof, and all franchise Taxes or Taxes on the overall capital or net worth of
any Participant or its applicable lending office, or any branch or affiliate
thereof, in each case imposed in lieu of income Taxes, imposed: (i) by the
jurisdiction under the Laws of which such Participant, applicable lending
office, branch or affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such Tax and such
Participant, applicable lending office, branch or affiliate other than a
connection arising solely from such Participant having executed, delivered or
performed its obligations, or received payment under or enforced, this
Agreement, the Operative Agreements, the Notes, or the Certificates, as the case
may be. If any such non-excluded Taxes ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to the Agent or any Participant hereunder or
under the Notes or the Certificates, (A) the amounts so payable to the Agent or
such Participant shall be increased to the extent necessary to yield to the
Agent or such Participant (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, the Notes and/or the Certificates; provided,
however, that the Owner Trustee shall be entitled to deduct and withhold any
Non-Excluded Taxes and shall not be required to increase any such amounts
payable to such Participant if such Participant is not organized under the Laws
of the United States of America or a state thereof and such Participant fails to
comply with the requirements of paragraph (b) of this subsection whenever any
Non-Excluded Taxes are payable by the Owner Trustee, and (B) as promptly as
possible thereafter the Owner Trustee shall send to the Agent for its own
account or for the account of such Participant, as the case may be, a certified
copy of an original official receipt received by the Owner Trustee showing
payment thereof. If the Owner Trustee fails to pay any Non-Excluded Taxes when
due to the appropriate
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taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Owner Trustee shall indemnify (with funds
provided by the Lessee as Supplemental Rent) the Agent and any Participant for
any incremental Taxes, interest or penalties that may become payable by the
Agent or such Participant as a result of any such failure.
(b) If any Participant is not incorporated under the laws of
the United States of America or any state thereof such Participant shall:
(i) on or before the date of any payment by the Owner
Trustee under this Agreement, the Notes or the Certificates, as the
case may be, to such Participant, deliver to the Owner Trustee and the
Agent (A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case
may be, certifying that it is entitled to receive payments under this
Agreement, the Notes and/or the Certificates, as the case may be,
without deduction or withholding of any United States federal income
Taxes and (B) an Internal Revenue Service Form W-8 or W-9, or any
successor applicable form, as the case may be, certifying that it is
entitled to an exemption from United States backup withholding Tax;
(ii) deliver to the Owner Trustee and the Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Owner Trustee; and
(iii) (A) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Owner Trustee or the Agent in order to
establish the legal entitlement of such Participant to an
exemption from withholding with respect to payments under this
Agreement, the Notes and/or the Certificates, as the case may
be; or
(B) in the case of any such Participant that
is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code, (1) represent to the Lessee and the Owner Trustee
(for the benefit of the Owner Trustee and the Agent) that it
is not a bank within the meaning of Section 881(c)(3)(A) of
the Code, (2) agree to furnish to the Owner Trustee on or
before the date of any payment by the Owner Trustee, with a
copy to the Agent two accurate and complete original signed
copies of Internal Revenue Service Form W-8, or any successor
applicable form, as the case may be, certifying to such
Participant's legal entitlement at the date of such
certificate to an exemption from U.S. withholding Tax under
the provisions of Section 881(c) of the Code with respect to
payments to be made under this Agreement, the Notes and/or the
Certificates, as the case may be (and to deliver to the
Lessee, the Owner Trustee and the Agent two further copies of
such form on or before the date it expires or becomes obsolete
and after the occurrence of any event requiring a change in
the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Lessee, the
Owner Trustee or the Agent for filing and completing such
forms), and (3) agree, to the extent legally entitled to do
so, upon reasonable request by the Lessee or the Owner
Trustee, to provide to the Lessee and the Owner Trustee (for
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the benefit of the Owner Trustee and the Agent) such other
forms as may be reasonably required in order to establish the
legal entitlement of such Participant to an exemption from
withholding with respect to payments under this Agreement, the
Notes and/or the Certificates, as the case may be.
Notwithstanding the above, if any change in treaty, Law or regulation has
occurred after the date such Person becomes a Participant hereunder which
renders all such forms inapplicable or which would prevent such Participant from
duly completing and delivering any such form with respect to it and such
Participant so advises the Owner Trustee and the Agent then such Participant
shall be exempt from such requirements. Each Person that shall become a
Participant or a participant of a Participant shall, upon the effectiveness of
the related transfer, be required to provide all of the forms, certifications
and statements required pursuant to this Section 9.2(b); provided, that in the
case of a participant of a Participant the obligations of such participant of
such Participant pursuant to this Section 9.2(b) shall be determined as if the
participant of such Participant were a Participant except that such participant
of such Participant shall furnish all such required forms, certifications and
statements to such Participant from which the related participation shall have
been purchased.
9.3 Compensation.
The Owner Trustee promises to indemnify (with funds provided by the
Lessee as Supplemental Rent) and to hold each Participant harmless from any loss
or expense which such Participant may sustain or incur as a consequence of (a)
the failure of the Lessee to close on any funding to be made on an Acceptance
Date as identified in any Notice of Delivery, (b) default by the Owner Trustee
in making any prepayment of the LIBOR Loans or the CD Loans or early redemption
of the LIBOR Holder Advances or the CD Holder Advances, as the case may be,
after the Owner Trustee has given a notice thereof in accordance with the
provisions of any Operative Agreement or otherwise in connection with any LIBOR
Loan or CD Loan or any LIBOR Holder Advance or CD Holder Advance or (c) the
making of a prepayment of the LIBOR Loans or the CD Loans or early redemption of
the LIBOR Holder Advances or the CD Holder Advances, as the case may be, on a
day which is not an Interest Payment Date for such LIBOR Loan or CD Loan or a
Yield Payment Date for such LIBOR Holder Advance or CD Holder Advance. Such
indemnification shall be an amount equal to (i) the amount of interest or yield
which would have accrued on the amount so prepaid, redeemed or not funded for
the period from the date of such failure to close, such prepayment or such early
redemption to the next succeeding Interest Payment Date for such LIBOR Loan or
CD Loan or the next succeeding Yield Payment Date for such LIBOR Holder Advance
or CD Holder Advance at the rate of interest for such LIBOR Loan or CD Loan or
at the Holder Yield for such LIBOR Holder Advance or CD Holder Advance, as the
case may be, provided for herein (excluding, however, the applicable spread over
the LIBOR Rate or the CD Rate included therein, if any) minus (ii) the amount of
interest or yield (as reasonably determined by such Participant) which would
have accrued to such Participant on such amount by placing such amount on
deposit for a comparable period with leading banks in the London interbank
market.
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SECTION 10. MISCELLANEOUS
10.1 Consents.
Each Holder hereby covenants and agrees that it shall not unreasonably
withhold its consent to any consent requested of the Owner Trustee under the
terms of the Operative Agreements that by its terms is not to be unreasonably
withheld by the Owner Trustee.
10.2 Appointment of Agent.
The Owner Trustee, each Holder and the Bank Lenders hereby designate
and appoint the Agent as the agent for each such Person under this Agreement and
the other Operative Agreements to take such action on behalf of such Person
under the provisions of Section 6.9 of this Agreement, to receive notices,
documents and other items under the Operative Agreements (including without
limitation pursuant to Sections 2.3(b), 2.8, 3.2(l), 3.3(m), 4.1(a), 4.2(c),
5.3, 5.4, 5.6 and 5.8 of this Agreement and Sections 20 and 22.1 of the Lease)
and to take such other action, exercise such powers and perform such duties as
are expressly delegated to the Agent by the terms of this Agreement and the
other Operative Agreements, together with such other powers as are reasonably
incidental thereto. The Owner Trustee and each Holder, as applicable, hereby
designate and appoint the Agent as the collateral agent for each such Person
under this Agreement and the other Operative Agreements to accept and hold the
Liens (a) securing the obligations, agreements and covenants of the Owner
Trustee in favor of each Holder under the Operative Agreements and granted by
the Owner Trustee in favor of the Agent for the benefit of the Holders under the
Loan Agreement and (b) securing the obligations, agreements and covenants of the
Lessee under the Lease and the other Operative Agreements (to the extent such
obligations run in favor of the Owner Trustee or any Holder) granted by the
Lessee in favor of the Owner Trustee for the benefit of the Holders under the
Lease and assigned by the Owner Trustee in favor of the Agent pursuant to
various Uniform Commercial Code financing statements. The Agent hereby accepts
such appointments and agrees, promptly upon receipt by the Agent, to forward
copies of all such notices, documents and other items (referenced in the first
sentence of this Section 10.2) to the Owner Trustee, the Holders, the Lenders
and the Bank Lenders. The Agent further agrees for the benefit of the Owner
Trustee, each Holder and each Lender to act on behalf of such parties respecting
Uniform Commercial Code filings pertaining to the Equipment and other filings
evidencing Liens on the Equipment, to the extent such Uniform Commercial Code
filings and other filings relate to Liens in favor of any such party and are
made in connection with the Overall Transaction. The preceding sentence is
intended as an agreement among the Agent, the Owner Trustee, each Holder and
each Lender and shall in no way impact or diminish the obligations of the Lessee
under the Operative Agreements. For purposes of this Section 10.2, the Lenders
hereby reaffirm their appointment of the Agent under the Loan Agreement, and the
Agent hereby reaffirms its acceptance of such appointment. The parties to this
Agreement further agree that any successor Agent appointed pursuant to the terms
of the Loan Agreement shall also be subject to approval by the Majority Holders.
10.3 Notices.
Unless otherwise expressly specified or permitted by the terms hereof,
all communications and notices provided for herein shall be in writing or by a
telecommunications device capable of
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creating a written record, and any such notice shall become effective (a) upon
personal delivery thereof, including without limitation by express mail or
courier service, (b) in the case of notice by United States mail, certified or
registered, postage prepaid, return receipt requested, upon receipt thereof or
(c) in the case of notice by such a telecommunications device, upon transmission
thereof; provided, such transmission is promptly confirmed by any of the methods
set forth in clauses (a) or (b) above or this clause (c), in each case addressed
to each party hereto at its address set forth below or, in the case of any such
party hereto, at such other address as such party may from time to time
designate by written notice to the other parties hereto:
If to the Lessee: Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
Attention: Mr. Marshall C. Meier
Finance Manager
Telephone: (704) 551-4633
Facsimile: (704) 551-4451
If to the Owner
Trustee: First Security Bank, National Association
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: Mr. Val T. Orton
Vice President
Telephone: (801) 246-5300
Facsimile: (801) 246-5053
with a copy to: the Holders at the respective addresses set forth
below
If to the Holders: NationsBanc Leasing Corporation
of North Carolina
101 South Tryon Street, NC1-002-38-20
Charlotte, North Carolina 28255
Attention: Manager of Corporate - Lease
Administration
Telephone: (704) 386-8234
Facsimile: (704) 386-0892
SunTrust Bank, Atlanta
25 Park Place, Mail Code 130
Atlanta, Georgia 30303
Attention: Mr. Joseph F. Upson,
Vice President
Telephone: (404) 724-3021
Facsimile: (404) 827-6695
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If to the Initial
Lender: Enterprise Funding Corporation
c/o Merrill Lynch Money Markets Inc.
World Financial Center
South Tower, 8th Floor
225 Liberty Street
New York, New York 10080
Attention: Mr. Gerard Haugh
Telephone: (212) 236-7200
Facsimile: (212) 236-7584
with a copy to: the Agent at its address set forth below
If to the initial
Bank Lender or
the Agent: NationsBank, N.A.
Independence Center, 15th Floor
NC1-001-15-04
101 North Tryon Street
Charlotte, North Carolina 28255
Attention: Mr. Jeff Strickland
Telephone: (704) 388-1107
Facsimile: (704) 388-9923
If to any Person which becomes a party to this Agreement (including without
limitation as a Bank Lender) after the Closing Date, to such address as such
Person may from time to time designate by written notice to the other parties
hereto.
10.4 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of,
and shall be enforceable by, the parties hereto and their respective successors
and assigns as permitted by and in accordance with the terms of the Operative
Agreements, including without limitation each successive holder of the
Certificates and each successive holder of any Note issued and delivered
pursuant to this Agreement, the Trust Agreement or the Loan Agreement. Except as
expressly provided herein or in the other Operative Agreements, no party hereto
may assign its interests herein without the consent of the parties hereto.
10.5 Governing Law; Submission To Jurisdiction.
THIS AGREEMENT SHALL BE IN ALL RESPECTS GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE; PROVIDED, HOWEVER, THAT THE
PARTIES HERETO SHALL BE ENTITLED TO ALL RIGHTS CONFERRED BY ANY APPLICABLE
FEDERAL STATUTE, RULE OR REGULATION. EACH PARTY TO THIS AGREEMENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREUNDER, (I) HEREBY
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IRREVOCABLY SUBMITS FOR ITSELF AND ITS PROPERTY TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NORTH CAROLINA IN MECKLENBURG COUNTY,
AND TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA, FOR THE PURPOSES OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT
TO WHICH IT IS A PARTY, THE SUBJECT MATTER OF ANY THEREOF OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY BROUGHT BY ANY PARTY OR PARTIES
THERETO, OR THEIR SUCCESSORS OR ASSIGNS, (II) HEREBY WAIVES, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION
OR PROCEEDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS AGREEMENT OR ANY OTHER OPERATIVE
AGREEMENT TO WHICH IT IS A PARTY OR THE SUBJECT MATTER OF ANY THEREOF OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY NOT BE ENFORCED IN OR BY
SUCH COURTS AND (III) HEREBY WAIVES ITS RIGHT TO A JURY TRIAL. EACH OF THE
PARTIES TO THIS AGREEMENT CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PARTY AT ITS
ADDRESS SPECIFIED IN SECTION 10.3.
10.6 Severability.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable Law,
but if any provision of this Agreement shall be prohibited by or invalid under
the Laws of any applicable jurisdiction, such provision, as to such
jurisdiction, shall be, to the extent permitted by Law, ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement in such
jurisdiction or in any other jurisdiction.
10.7 Counterparts.
This Agreement may be executed in any number of counterparts (and each
of the parties hereto shall not be required to execute the same counterpart).
Each counterpart of this Agreement including a signature page executed by each
of the parties hereto shall be an original counterpart of this Agreement, but
all such counterparts together shall constitute one instrument.
10.8 The Lessee's Right to Quiet Enjoyment.
Each party to this Agreement acknowledges notice of, and consents in
all respects to, the terms of the Lease, and expressly agrees that with respect
to the Lease, so long as no Lease Event of Default has occurred and is
continuing thereunder, it or any Person acting on its authority, shall not,
through its or any such Person's actions or inactions, interfere with the
Lessee's rights under the Lease, including without limitation the right to
possession, use and quiet enjoyment by the Lessee or any permitted sublessee of
the Equipment leased thereunder.
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10.9 Limitations of Liability.
(a) Neither the Lenders, the Bank Lenders, the Owner Trustee,
the Holders nor the Agent shall have any obligation or duty to the Lessee, to
any other party hereto or to others with respect to the transactions
contemplated hereby, except those obligations or duties of such parties
expressly set forth in this Agreement and the other Operative Agreements, and
neither the Lenders, the Bank Lenders, the Owner Trustee, the Holders nor the
Agent shall be liable for performance by any other party hereto of such other
party's obligations or duties hereunder. Without limitation of the generality of
the foregoing, under no circumstances whatsoever shall the Lenders, the Bank
Lenders, the Holders or the Agent be liable to the Lessee or any other Person
for any action or inaction on the part of the Owner Trustee in connection with
the transactions contemplated herein, whether or not such action or inaction is
caused by willful misconduct or gross negligence of the Owner Trustee unless
such action or inaction is at the direction of the Lenders, the Bank Lenders,
the Holders or the Agent, as the case may be.
(b) It is expressly understood and agreed by and between the
Owner Trustee, the Lessee, the Holders, the Lenders, the Bank Lenders and the
Agent, and their respective successors and permitted assigns that, subject to
the proviso contained in this Section 10.9(b), all representations, warranties
and undertakings of the Owner Trustee hereunder shall be binding upon the Owner
Trustee, only in its capacity as the Owner Trustee under the Trust Agreement,
and (except as expressly provided herein) the Owner Trustee shall not be liable
in its individual capacity for any breach thereof, except for its gross
negligence or willful misconduct, or for breach of its covenants,
representations and warranties contained herein, except to the extent covenanted
or made in its individual capacity; provided, however, that nothing in this
Section 10.9(b) shall be construed to limit in scope or substance those
representations and warranties of the Owner Trustee made expressly in its
individual capacity set forth herein. The term "Owner Trustee" as used in this
Agreement shall include any successor trustee under the Trust Agreement.
10.10 Confidentiality.
The Owner Trustee, the Holders, the Lenders, the Bank Lenders and the
Agent shall maintain in confidence and not disclose to any Person any non-public
information furnished to it pursuant to any of the Operative Agreements
("Confidential Information") without the prior consent of the Lessee, except (a)
as required by Law or Governmental Authority, (b) to the extent that such
Confidential Information is publicly available, (c) where such Confidential
Information was previously known to the Owner Trustee, the Holders, the Lenders,
the Bank Lenders and/or the Agent, as the case may be, free of any obligation to
keep such information confidential, or such Confidential Information is or
becomes available to the Owner Trustee, the Holders, the Lenders, the Bank
Lenders and/or the Agent, as the case may be, on a non-confidential basis from a
source other than the Lessee, or the agents or advisors of the Lessee, (d) as
disclosure to third parties (including without limitation courts of competent
jurisdiction) in connection with or in response to any order, decree, judgment,
subpoena, notice of discovery or similar ruling or pleading, (e) as part of its
normal reporting or review procedure to its auditors, regulators, parent company
or Affiliates, (f) to the extent necessary to obtain appropriate insurance, to
its insurance agent, provided, that prior to such disclosure, such agent shall
sign a confidentiality agreement binding the agent to provisions substantially
the same as the provisions of this Section 10.10, (g) in order to enforce its
rights and perform its obligations pursuant to the Operative Agreements or
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(h) any rating agency then rating the Commercial Paper or any securities issued
by the Lenders, the Bank Lenders or the Agent. The obligations of the Owner
Trustee, the Holders, the Lenders, the Bank Lenders and the Agent under this
Section 10.10 shall survive the termination of the Operative Agreements and the
payment of the Notes and the Certificates and all other amounts payable
hereunder.
10.11 Survival of Indemnities.
Notwithstanding anything in this Agreement or in any other document or
agreement to the contrary, any indemnity provided by any Person hereunder
(including without limitation Sections 7.1, 7.2, 9.1, 9.2 or 9.3) or in any
other Operative Agreement shall survive the termination of this Agreement, the
Lease and any other Operative Agreement.
10.12 No Recourse Against Stockholders, Officers or Directors.
No recourse under any obligation, covenant or agreement of the Lender
contained in any Operative Agreement shall be had against Merrill Lynch Money
Markets Inc. (or any Affiliate thereof), or any stockholder, officer or director
of the Initial Lender, as such, by the enforcement of any assessment or by any
legal or equitable proceeding, by virtue of any statute or otherwise; it being
expressly agreed and understood that the obligations of the Initial Lender under
the Operative Agreements are solely corporate obligations of the Initial Lender,
and that no personal liability whatsoever shall attach to or be incurred by
Merrill Lynch Money Markets Inc. (or any Affiliate thereof), or the
stockholders, officers or directors of the Initial Lender, as such, or any of
them, under or by reason of any of the obligations, covenants or agreements of
the Initial Lender contained in any Operative Agreement, or implied therefrom,
and that any and all personal liability for breaches by the Initial Lender of
any of such obligations, covenants or agreements, either at common law or at
equity, or by statute or constitution, of Merrill Lynch Money Markets Inc. (or
any Affiliate thereof) and every such stockholder, officer or director of the
Initial Lender is hereby expressly waived as a condition of and consideration
for the execution of the Operative Agreements to which the Initial Lender is a
party.
10.13 No Bankruptcy Petition Against the Initial Lender.
Each of the parties hereto other than the Initial Lender hereby
covenants and agrees that, prior to the date which is one year and one day after
the payment in full of all outstanding Commercial Paper or other indebtedness of
the Initial Lender, it will not institute against, or join any Person in
instituting against, the Initial Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States relating
to the Overall Transaction.
10.14 Majority in Interest of Noteholders.
Notwithstanding any language to the contrary contained in any Operative
Agreements, so long as the Initial Lender is a holder of a Note, any provision
in the Operative Agreements requiring the consent of the Lenders, Majority In
Interest or of each holder of a Note, shall require the consent of the Bank
Lenders, Majority In Interest of Bank Lenders or of each Bank Lender, as the
case may be, and also shall require the consent of the Initial Lender.
-58-
<PAGE>
10.15 Compliance Certificate.
The Compliance Certificate, as required to be delivered from time to
time by the terms of the Operative Agreements, shall be executed by the
President, any Vice President, the Treasurer or the Chief Financial Officer of
the Lessee and delivered as required by the applicable provisions of the
Operative Agreements.
-59-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be executed and delivered by their respective officers thereunto
duly authorized, all as of the date first above written.
COCA-COLA BOTTLING CO.
CONSOLIDATED, as the Lessee
By:
Name:
Title:
[Signature Pages Continued]
S-1
<PAGE>
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not
in its individual capacity
except as expressly
provided herein, but solely
as Owner Trustee under
Coca-Cola Trust No. 97-1
By:
Name:
Title:
[Signature Pages Continued]
S-2
<PAGE>
ENTERPRISE FUNDING CORPORATION,
as the Initial Lender
By:
Name:
Title:
[Signature Pages Continued]
S-3
<PAGE>
NATIONSBANK, N.A.,
as Agent and a Bank Lender
By:
Name:
Title:
[Signature Pages Continued]
S-4
<PAGE>
NATIONSBANC LEASING CORPORATION
OF NORTH CAROLINA, as a Holder
By:
Name:
Title:
[Signature Pages Continued]
S-5
<PAGE>
SUNTRUST BANK, ATLANTA,
as a Holder
By:
Name:
Title:
S-6
<PAGE>
EXHIBIT A
(Form of Purchase Agreement Assignment)
PURCHASE AGREEMENT ASSIGNMENT
THIS PURCHASE AGREEMENT ASSIGNMENT dated as of _________, 1997 (as
amended, modified, supplemented, restated and/or replaced from time to time, the
"Assignment") is between COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware
corporation (the "Assignor"), and FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity except as expressly
provided herein, but solely as Owner Trustee under Coca-Cola Trust No. 97-1 (the
"Assignee").
RECITALS:
A. The Assignor and ____________ (the "Vendor") have entered into that
certain purchase agreement, a copy of which is attached hereto and made a part
hereof as Schedule A (the "Purchase Agreement") providing for the sale and
delivery of certain equipment described therein (the "Equipment").
B. The Assignor desires to assign to the Assignee, and the Assignee
desires to assume, all of the rights and benefits of the Assignor under the
Purchase Agreement but none of the liabilities of the Assignor thereunder.
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED, AND OTHER
GOOD AND VALUABLE CONSIDERATION, THE PARTIES HERETO HEREBY AGREE AS FOLLOWS:
SECTION 11. ASSIGNMENT.
The Assignor does hereby assign, sell and set over to the Assignee, and
the Assignee does hereby accept, all of the Assignor's rights and benefits in,
to and under the Purchase Agreement, including without limitation in such
assignment (a) all warranty and indemnity provisions contained in the Purchase
Agreement, (b) all claims of the Assignor for damages or otherwise in respect of
the Equipment under the Purchase Agreement and (c) any and all rights of the
Assignor to compel performance of the terms of the Purchase Agreement; provided,
however, unless and until an Agency Termination Event (as such term is
hereinafter defined) shall have occurred, the Assignor shall be deemed the agent
of the Assignee for the limited purpose of exercising the rights of the Assignee
described in clauses (a)-(c) above. For purposes of this Assignment, the term
"Agency Termination Event" shall mean the occurrence of the following: (x) a
Lease Event of Default (as such term is defined in that certain Master Equipment
Lease Agreement dated as of April 10, 1997 (as amended, modified, supplemented,
restated and/or replaced from time to time, the "Lease Agreement") between the
Assignor and the Assignee) shall have occurred and be continuing and (y)(i) the
Assignee shall have given the Assignor written notice to cease acting as the
Assignee's agent with respect to the exercise of the rights of the Assignee
under any applicable
<PAGE>
manufacturer's or vendor's warranties with respect to the
Equipment or (ii) the Assignee shall have commenced the exercise of any remedy
under the Lease Agreement pursuant to such Lease Event of Default.
SECTION 12. CONTINUING LIABILITY OF ASSIGNOR.
It is expressly agreed that, anything herein contained to the contrary
notwithstanding: (a) the Assignor shall at all times remain liable to the Vendor
under the Purchase Agreement to perform or cause to be performed all the duties
and obligations of the purchaser thereunder to the same extent as if this
Assignment had not been executed, (b) the exercise by the Assignee of any of the
rights assigned hereunder shall not release the Assignor from any of its duties
or obligations to the Vendor under the Purchase Agreement, except to the extent
that the Assignee shall perform any of such duties and/or obligations and (c)
the Assignee shall have no obligation or liability under the Purchase Agreement
by reason of, or arising out of, this Assignment or be obligated to perform any
of the obligations or duties of the Assignor under the Purchase Agreement or to
make any payment or to make any inquiry as to the sufficiency of any payment
received by the Vendor or to present or file any claim or to take any other
action to collect or enforce any claim for any payment, which obligations are
solely for the account of the Assignor and for the benefit of the Vendor.
SECTION 13. FURTHER ASSURANCES.
The Assignor agrees that at any time and from time to time, upon the
written request of the Assignee, the Assignor will promptly and duly execute and
deliver any and all such further instruments and documents and take such further
action as the Assignee may reasonably request in order to obtain the full
benefits of this Assignment and of the rights and powers herein granted.
SECTION 14. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ASSIGNOR.
The Assignor does hereby represent, warrant and covenant that:
(a) the Purchase Agreement is in full force and effect, the Assignor is
not in default thereunder and to the best of the Assignor's knowledge, the
Vendor is not in default thereunder;
(b) the Assignor has not assigned or pledged, and hereby covenants that
it will not assign or pledge so long as this Assignment shall remain in effect,
the whole or any part of the rights hereby assigned to anyone other than the
Assignee;
(c) except for the Purchase Agreement, the Assignor is not a party to
or a beneficiary of any document, instrument or other agreement pursuant to
which any other party has made any representation or warranty or granted any
indemnity or any other type of protection with respect to the Equipment;
<PAGE>
(d) the Purchase Agreement has not been amended, modified,
supplemented, restated and/or replaced at any time; and
(e) the Assignor shall not agree to any amendment, modification,
supplementation, restatement and/or replacement to the Purchase Agreement
without the prior written consent of the Assignee and any such amendment,
modification, supplementation, restatement and/or replacement entered into
without such consent from the Assignee shall be deemed null and void.
SECTION 15. NOTICES.
All notices provided for or required under the terms and provisions
hereof shall be in writing, and any such notice shall be deemed given when
personally delivered or when deposited with a nationally recognized overnight
delivery service, with the cost therefor prepaid, or in the United States mails,
with proper postage prepaid, for first class certified mail, return receipt
requested, addressed to either the Assignor or the Assignee, respectively, at
their respective addresses as set forth herein or at such other address as
either of them shall, from time to time, designate in writing to the other.
If to the Assignor: Coca-Cola Bottling Co. Consolidated
1900 Rexford Road
Charlotte, North Carolina 28211
Attention: Mr. Marshall C. Meier
Finance Manager
If to the Assignee: First Security Bank, National Association, as
Owner Trustee under Coca-Cola Trust No. 97-1
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: Mr. Val T. Orton
Vice President
SECTION 16. GOVERNING LAW.
This Assignment, and all of the rights and obligations hereunder,
including without limitation matters of validity and performance, shall be
governed by and construed under the laws and decisions of the State of North
Carolina without regard to the conflicts of law principles thereunder.
SECTION 17. COUNTERPARTS.
This Assignment may be executed in as many counterparts as shall be
determined by the parties hereto when so executed, each such counterpart shall
be binding on all parties hereto, notwithstanding that all parties are not
signatories to the same counterpart.
[The remainder of this page has been intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed by their duly authorized officers as of the date first above
written.
COCA-COLA BOTTLING CO.
CONSOLIDATED
By:
Name:
Title:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity except as
expressly provided herein, but solely as Owner Trustee under
Coca-Cola Trust No. 97-1
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
[Vendor]
By:
Name:
Title:
<PAGE>
SCHEDULE A
[Attach Purchase Agreement]
<PAGE>
EXHIBIT B
(Form of Notice of Delivery)
NOTICE OF DELIVERY
THIS NOTICE OF DELIVERY dated as of ___________, 1997 is given by
COCA-COLA BOTTLING CO. CONSOLIDATED, as Lessee, under that certain Master
Equipment Lease Agreement (Coca-Cola Trust No. 97-1) dated as of April 10, 1997
(as amended, modified, supplemented, restated and/or replaced from time to time,
the "Agreement") between Lessor and Lessee. This Notice of Delivery is being
given pursuant to the terms of Section 2.3(b) of the Participation Agreement
(such term and other capitalized terms used herein and not otherwise defined
herein shall have the meanings provided therefor in the Agreement). Lessee
hereby makes the following requests and certifications:
1. The requested Acceptance Date for funding of Equipment is
_________.
2. The Equipment for which such funding is sought is described in
Schedule A hereto.
3. The aggregate Equipment Cost of the Equipment described in
Schedule A is $___________.
4. The requested Aggregate Holder Funded Amount is
$______________.
5. The requested Aggregate Lender Funded Amount is
$______________.
6. For so long as the Initial Lender is the Lender, the interest
rate of each Loan shall be the CP Rate. The requested Interest
Period for Loans bearing interest at the CP Rate is ___ days
(specify one to 95), provided, the Lessee acknowledges that
the foregoing is subject to Section 2.3(d) of the
Participation Agreement.
7. [If the CP Rate is not in effect] the requested interest rate
option for Loans and the requested Interest Period is:
________ LIBOR Rate ___ One Months
___ Two Months
___ Three Months
___ Six Months
________ CD Rate
________ Reference Rate
<PAGE>
8. The requested basis for yield calculation for Holder Advances
and the requested Payment Period is:
________ LIBOR Rate ___ One Months
___ Two Months
___ Three Months
___ Six Months
________ CD Rate
________ Reference Rate
9. The amount of Commercial Paper outstanding is $____________.
10. The Debt Rating of the Lessee is ______ S&P ______ Moody's.
11. ________ A Lease Event of Default has occurred and is
continuing.
________ No Lease Event of Default has occurred and is
continuing.
12. ________ A Loan Agreement Event of Default has occurred and
is continuing.
________ No Loan Agreement Event of Default has occurred and
is continuing.
13. ________ The Net Receivables Balance equals or exceeds the
Net Investment.
________ The Net Receivables Balance is less than the
Net Investment.
[The remainder of this page has been intentionally left blank.]
<PAGE>
The Lessee hereby certifies that the undersigned person signing on
behalf of the Lessee is duly authorized to execute and delivery this Notice of
Delivery.
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
Name:
Title:
<PAGE>
SCHEDULE A
DESCRIPTION OF THE EQUIPMENT/EQUIPMENT COST
</TABLE>
<TABLE>
<CAPTION>
[Registration Equipment
Make Model Serial Number [VIN] Number] Class Cost
<S> <C>
</TABLE>
<PAGE>
EXHIBIT C
(Form of Certificate of Acceptance)
CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance relates to the Units listed below leased
by FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity
except as expressly provided herein, but solely as Owner Trustee under Coca-Cola
Trust No. 97-1, as the Lessor, to COCA-COLA BOTTLING CO. CONSOLIDATED, as the
Lessee, under that certain Master Equipment Lease Agreement (Coca-Cola Trust No.
97-1) dated as of April 10, 1997 (as amended, modified, supplemented, restated
and/or replaced from time to time, the "Agreement") between the Lessor and the
Lessee. This Certificate of Acceptance is being entered into pursuant to the
terms of Section 2.3(c) of the Participation Agreement (such term and other
capitalized terms used herein and not otherwise defined herein shall have the
meanings provided therefor in the Agreement).
DESCRIPTION OF UNITS:
See Attached
Schedule A
ALLOCATION OF EQUIPMENT COST AMONG THE APPROVED STATES:
See Attached
Schedule B
AGGREGATE EQUIPMENT COST OF EQUIPMENT IDENTIFIED IN SCHEDULE A IS $___________
[Identify per Class of Equipment]
As of the date below written, the Lessee hereby certifies (as between
the Lessee and the Lessor) that the Lessee hereby unconditionally accepts the
Units of Equipment listed herein and hereby subjects said Units to the
Agreement.
[The remainder of this page has been intentionally left blank.]
<PAGE>
The Lessee hereby certifies that the undersigned person signing on
behalf of the Lessee is duly authorized to execute and deliver this Certificate
of Acceptance.
DATED: ______________
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
Name:
Title:
<PAGE>
Schedule A
Description of the Equipment/Equipment Cost
<TABLE>
<CAPTION>
[Registration Equipment
Make Model Serial Number [VIN] Number] Class Cost
<S> <C>
</TABLE>
<PAGE>
Schedule B
Allocation of Equipment Cost among the Approved States
<PAGE>
EXHIBIT D
(Form of Compliance Certificate)
COMPLIANCE CERTIFICATE
To Whom it May Concern:
The undersigned, [name] _________, [title] ___________, of Coca-Cola
Bottling Co. Consolidated (the "Company"), hereby certifies no knowledge of any
Event of Default, Potential Default, Lease Event of Default, Lease Default, Loan
Agreement Default or Loan Agreement Event of Default as defined in the Company's
various debt agreements and the Lease Agreement, as the case may be. Reference
is made herein to the Master Equipment Lease Agreement (Coca-Cola Trust No.
97-1) dated as of April 10, 1997 (as amended, modified, supplemented, restated
and/or replaced from time to time, the "Lease Agreement") between First Security
Bank, National Association, not in its individual capacity except as expressly
provided therein, but solely as Owner Trustee under Coca-Cola Trust No. 97-1 and
the Company. Furthermore, as defined in the Indenture Agreement dated October
15, 1989, with Manufacturers Hanover Trust Company of California (Trustee) and
the Indenture Agreement dated July 20, 1994, as supplemented and restated with
Citibank, N.A. (Trustee) and the Loan Agreement dated as of November 20, 1995,
as amended, with LTCB Trust Company as Agent, [name] ___________ hereby
certifies no knowledge of a Designated Event or Ratings Decline. The Company is
in compliance with all of its various debt agreements and the Lease Agreement.
Currently, the Net Receivables Balance equals or exceeds the Net Investment.
In addition, the attached [audited] [unaudited] financial statements have been
prepared by the Company in accordance with generally accepted accounting
principles and, in the judgment of management, present fairly and consistently
the Company's financial position and results of operations.
[name] __________ hereby certifies in connection with the transactions
described in and related to the Lease Agreement as follows:
The amount of Commercial Paper outstanding is $_________.
The principal payment due with respect to the Loans is $_________.
The Debt Rating of the Company is __________ by Moody's Investor
Services, Inc. and _________ by Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
This certificate and the attached financial statements satisfy the
Company's requirements under each of its debt agreements and the Lease
Agreement.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed in its corporate name by its _________ to be effective as of the ___ day
of ________, ___.
COCA-COLA BOTTLING CO.
CONSOLIDATED
By:
Name:
Title:
<PAGE>
[Attach Financial Statements]
<PAGE>
EXHIBIT E
(Form of Assignment and Assumption Agreement)
ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Loan and Security Agreement, dated as of April
10, 1997, as it may be amended or otherwise modified from time to time (as so
amended or modified, the "Agreement"), by and among First Security Bank,
National Association, as Owner Trustee under Coca-Cola Trust No. 97-1 (the
"Owner Trustee"), Enterprise Funding Corporation, as the Initial Lender ("EFC"),
and NationsBank N.A., as Agent (the "Agent"). Terms used herein and not
otherwise defined herein or in the Agreement shall have the meanings specified
therefor in Appendix A to that certain Participation Agreement, dated as of
April 10, 1997 (as it may be amended or otherwise modified from time to time,
(the "Participation Agreement"), by and among Coca-Cola Bottling Co.
Consolidated, as the Lessee (the "Lessee"), the Owner Trustee, NationsBanc
Leasing Corporation of North Carolina and SunTrust Bank, Atlanta, (collectively,
the "Holders"), EFC, NationsBank, N.A., as Agent and Liquidity Provider and
NationsBank, N.A., as Bank Lender (the "Bank Lender").
[Name of Assignor], in its capacity as [Bank Lender/Initial Lender]
under the Participation Agreement (the "Assignor") and [Name of Assignee] (the
"Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Notes, the Loans and all of the Assignor's right, title, interest and
obligations under the Agreement (the "Assignor's Interest"), such interest
acquired by the Assignee hereunder expressed as a percentage of all rights and
obligations of the Bank Lenders being equal to the percentage equivalent of a
fraction, the numerator of which is $[________] and the denominator of which is
the aggregate Lender Class Commitments of all Bank Lenders.1
1. In consideration of the payment of $___________, being ___% of the
outstanding principal amount of the Notes, and of $___________, being ___% of
the aggregate unpaid discount on outstanding Commercial Paper due on the current
maturity date of such Commercial Paper, receipt of which payment is hereby
acknowledged, the Assignor hereby assigns to the Agent for the account of the
Assignee, and the Assignee hereby purchases from the Assignor, a ___% interest
in and to the Notes, the Loans and all of the Assignor's right, title, interest
and obligations under the Agreement purchased by the undersigned.2
- --------
1 This provision to be used if the Assignor is a Bank Lender.
2 This provision to be used if the Assignor is the Initial Lender.
<PAGE>
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the Assignor's Interest being assigned by it hereunder and
that such Assignor's Interest is free and clear of any Lien created by it; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Operative Agreements, the Notes or the Loans or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Operative
Agreements, the Notes or the Loans; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Owner Trustee or the Lessee or the performance or observance by the Owner
Trustee or the Lessee of any of its respective obligations under the Agreement
or any instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Operative Agreements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption Agreement and purchase the Assignor's Interest from
the Assignor; (ii) agrees that it will, independently and without reliance upon
the Agent or any of its Affiliates, the Assignor or any other Bank Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Operative Agreements to which the Assignor is a party; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Operative Agreements as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (iv) appoints the Agent to enforce its respective rights and
interests in and under the Agreement and the Collateral in accordance with the
Operative Agreements; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Operative Agreements are
required to be performed by it as a Bank Lender; (vi) specifies as its address
for notices and its account for payments the office and account set forth
beneath its name on the signature pages hereof; (vii) attaches the forms
prescribed by the Internal Revenue Service of the United States of America
certifying as to the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made to
the Assignee under the Agreement or such other documents as are necessary to
indicate that all such payments are subject to such rates at a rate reduced by
an applicable tax treaty; and (viii) represents and warrants to the Assignor
that (A) it is duly organized and in good standing under the laws of its
jurisdiction of organization, (B) its execution, delivery and performance of
this Agreement have been duly authorized and (C) this Agreement is enforceable
against it in accordance with its terms.
4. The effective date for this Assignment and Assumption Agreement
shall be the later of (i) the date on which the Agent receives this Assignment
and Assumption Agreement executed by the parties hereto, and receives the
consent of the Owner Trustee, the Lessee and the Agent, on behalf of the Initial
Lender (provided, however, the consent of the Owner Trustee and the Lessee shall
not be required if a Default or Event of Default has occurred and is continuing;
provided, further, the consent of the Initial Lender shall not be required if
the Initial Lender is not a holder of a Note), and (ii) the date of this
Assignment and Assumption Agreement (the "Effective Date"). Following the
execution of this Assignment and Assumption Agreement and the consent of Owner
Trustee, the Lessee and the Agent on behalf of the Initial Lender (provided,
however, the consent of the Owner Trustee and the Lessee shall not be required
if a Default or
<PAGE>
Event of Default has occurred and is continuing; provided, further, the consent
of the Initial Lender shall not be required if the Initial Lender is not a
holder of a Note), this Assignment and Assumption Agreement shall be delivered
to the Agent for acceptance and, with respect to the Agreement, recording by the
Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i)
the Assignee shall be a party to the Agreement and, to the extent provided in
this Agreement, have the rights and obligations of a Bank Lender thereunder and
(ii) the Assignor shall, to the extent provided in this Assignment and
Assumption Agreement, relinquish its rights and be released from its obligations
under the Agreement.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments under the Agreement in respect of the
interest assigned hereby (including, without limitation, all payments in respect
of such interest in the related principal of and interest on the Loans allocable
to the related Bank Lender and fees) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Agreement for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Assumption Agreement shall be governed by, and
construed in accordance with, the laws of the State of North Carolina.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the __ day of ____ 199_.
[ASSIGNOR]
By:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
Address for notices and Account for payments:
For Credit Matters: For Administrative Matters:
[NAME] [NAME]
Attn: __________ Attn: _____________
Telephone: ( ) ___-____ Telephone: (___) ___-____
Telefax: (___) ___-____ Telefax: (___) ___-____
Account for Payments:
NAME
- --------------
ABA Number: ___-___-___
Account Number: _______
Attn: ______________
Re: ________________
<PAGE>
Consented to this __ day
of ________, 199_
NATIONSBANK, N.A., as
Agent
By:
Name:
Title:
[if required] First Security Bank, National Association,
as Owner Trustee under Coca-Cola Trust No. 97-1
By:
Name:
Title:
[if required] Coca-Cola Bottling Co. Consolidated,
as the Lessee
By:
Name:
Title:
Accepted this ___ day
of ________, 199_
NATIONSBANK, N.A.
as Agent
By:
Name:
Title:
<PAGE>
EXHIBIT F
(Form of Notice of Request for Renewal)
Notice of Request for Renewal
Pursuant to that certain Participation Agreement dated as of April 10,
1997, as amended, modified, supplemented, restated and/or replaced to the date
hereof (said Participation Agreement, as so amended, modified, supplemented,
restated and/or replaced, being the "Participation Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined),
by and among Coca-Cola Bottling Co. Consolidated (the "Lessee"), First Security
Bank, National Association, not in its individual capacity except as expressly
provided therein, but solely as Owner Trustee under Coca-Cola Trust No. 97-1
(the "Owner Trustee"), and NationsBanc Leasing Corporation of North Carolina,
and SunTrust Bank, Atlanta (collectively, the "Holders"), Enterprise Funding
Corporation (the "Initial Lender"), NationsBank, N.A. (the "Agent") and
NationsBank, N.A., and certain other financial institutions from time to time
parties hereto, as bank lenders (collectively, the "Bank Lenders"), this
represents the Lessee's request, to extend the Bank Commitment Expiration Date
to ______________, in accordance with Section 8 of the Participation Agreement.
Please indicate your consent to, or rejection of, such extension of the
Bank Commitment Expiration Date by signing this Notice of Request for Extension
in the space provided below and returning the same to the Lessee, the Agent and
the Initial Lender on or before ______________.
DATED: __________________
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
Name:
Title:
<PAGE>
The undersigned Bank Lender hereby irrevocably consents to the extension of the
Bank Commitment Expiration Date as requested above
Dated:
Bank Lender:
Dated:
Bank Lender:
The undersigned Bank Lender hereby rejects the extension of the Bank Commitment
Expiration Date as requested above
Dated:
Bank Lender:
Dated:
Bank Lender:
<PAGE>
SCHEDULE 1
(Participant's Funding Percentages)
Holders' Funding Percentages
<TABLE>
<CAPTION>
Equipment Funding
Holders Class Percentage*
<S> <C> <C>
NationsBanc Leasing Corporation
of North Carolina Class A Equipment 50%
NationsBanc Leasing Corporation
of North Carolina Class B Equipment 50%
NationsBanc Leasing Corporation
of North Carolina Class C Equipment 50%
SunTrust Bank, Atlanta Class A Equipment 50%
SunTrust Bank, Atlanta Class B Equipment 50%
SunTrust Bank, Atlanta Class C Equipment 50%
</TABLE>
- ------------------------
* Expressed as a percentage of the Equity Percentage of the Equipment Cost for
each Class of Equipment on each applicable Lease Supplement.
<PAGE>
Lenders' Funding Percentages
<TABLE>
<CAPTION>
Equipment Funding
Lenders Class Percentage*
<S> <C>
Enterprise Funding Corporation Class A Equipment 100%
Enterprise Funding Corporation Class B Equipment 100%
Enterprise Funding Corporation Class C Equipment 100%
</TABLE>
- ------------------------
* Expressed as a percentage of the Debt Percentage of the Equipment Cost for
each Class of Equipment on each applicable Lease Supplement.
To the extent each Bank Lender subsequently becomes a holder of a Note then the
following shall apply:
<TABLE>
<CAPTION>
Equipment Funding
Lenders Class Percentage*
<S> <C> <C>
NationsBank Class A Equipment 100%
NationsBank Class B Equipment 100%
NationsBank Class C Equipment 100%
</TABLE>
- ------------------------
* Expressed as a percentage of the Debt Percentage of the Equipment Cost for
each Class of Equipment on each applicable Lease Supplement.
<PAGE>
SCHEDULE 2
(Debt Percentage; Equity Percentage)
Debt Percentage
Equipment Class Debt Percentage*
Class A Equipment 86.42203575%
Class B Equipment 81.85948790%
Class C Equipment 83.04138903%
- ------------------------
* Expressed as a percentage of the Equipment Cost for each Class of Equipment on
each applicable Lease Supplement.
Equity Percentage
Equipment Class Equity Percentage*
Class A Equipment 13.57796425%
Class B Equipment 18.14051210%
Class C Equipment 16.95861097%
- ------------------------
* Expressed as a percentage of the Equipment Cost for each Class of Equipment on
each applicable Lease Supplement.
<PAGE>
SCHEDULE 3
Environmental Disclosure
None
<PAGE>
APPENDIX A
COCA-COLA TRUST NO. 97-1
DEFINITIONS
General Provisions
The following terms shall have the following meanings for all purposes
of the Operative Agreements referred to below, unless otherwise defined in an
Operative Agreement or the context thereof shall otherwise require. Such
meanings shall be equally applicable to both the singular and the plural forms
of the terms herein defined. In the case of any conflict between the provisions
of this Appendix A and the provisions of the main body of any Operative
Agreement, the provisions of the main body of such Operative Agreement shall
control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as the same may be amended,
modified, supplemented, restated and/or replaced from time to time to the extent
permitted by the Operative Agreements, (ii) references to parties to agreements
shall be deemed to include the successors and assigns of such parties permitted
in accordance with the Operative Agreements, (iii) references in any document to
articles, sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits are references to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits in or to such document, (iv) the headings,
subheadings and table of contents used in any document are solely for
convenience of reference and shall not constitute a part of any such document
nor shall they affect the meaning, construction or effect of any provision
thereof, (v) references to any law includes any amendment or modification to
such law and any rules or regulations issued thereunder or any law enacted in
substitution or replacement therefor, (vi) when used in any document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof, (vii) references to "including" means
including without limiting the generality of any description preceding such term
and for purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned, (viii)
each of the parties to the Operative Agreements and their counsel have reviewed
and revised, or requested revisions to, the Operative Agreements, and the usual
rule of construction that any ambiguities are to be resolved against the
drafting party shall be inapplicable in the construction and interpretation of
the Operative Agreements and any amendments or exhibits thereto and (ix)
capitalized terms used in any Operative Agreements which are not defined in this
Appendix A but are defined in another Operative Agreement shall have the
meanings so ascribed to such terms in the applicable Operative Agreement.
<PAGE>
Defined Terms
"A-2/P-2 Event" shall have the meaning specified in Section 8.4 of the
Participation Agreement.
"A-3/P-3 Event" shall have the meaning specified in Section 8.4 of the
Participation Agreement.
"ABR Holder Advance" shall mean each Holder Advance, at such time as
such Holder Advance bears yield at the Reference Rate plus 0.500% or the CD Rate
plus 0.900%, as the case may be.
"ABR Loan" shall mean each Loan, at such time as such Loan bears
interest at the Reference Rate or the CD Rate plus the Applicable Margin, as the
case may be.
"ABR Rate" shall mean, as selected by the Lessee (on behalf of the
Owner Trustee), the Reference Rate or the CD Rate; provided, if the Agent gives
the Owner Trustee and the Lessee notice that the CD Rate cannot be determined or
is unlawful or that any Lender or Holder is unable to match funds with respect
to any CD Loan or the CD Holder Advance, as the case may be, then the ABR Rate
shall be the Reference Rate until the Interest Period, Payment Period or any
other period of time at which amounts are to bear interest at the ABR Rate, as
the case may be, commencing immediately following the date on which the CD Rate
can be determined, is lawful and is capable of being match funded by the Lenders
and the Holders (if the CD Rate is elected at such time by the Lessee (on behalf
of the Owner Trustee)).
"Acceptance Date" shall mean the dates as of which Units (i) are
purchased by the Owner Trustee in accordance with the Participation Agreement
and (ii) become leased assets under the applicable Lease Supplement.
"Acquisition Cash Flow" shall mean operating income for the applicable
period plus any amounts deducted for depreciation, amortization and operating
lease expense in determining operating income of all assets, franchises and
businesses acquired during the most recently completed quarter or any of the
preceding three calendar quarters by the Lessee or any its Consolidated
Subsidiaries (to the extent not included in Consolidated Operating Income for
the applicable period), determined using historical financial statements of such
assets, franchises and businesses acquired with appropriate adjustments thereto
in order to reflect such operating income, depreciation, amortization and
operating lease expense on an actual historical combined pro forma basis as if
the assets, franchises and businesses acquired had been owned by the Lessee
during the relevant period. Operating income as used in the preceding sentence
shall be determined using the same method prescribed for determining
Consolidated Operating Income and using GAAP applied consistently with the
application of GAAP in preparation of the Lessee's financial statements for the
relevant period and such determination shall be in all respects reasonably
satisfactory to the Majority In Interest and the Majority Holders.
"Additionally Insured Parties" shall mean the Owner Trustee (in its
individual capacity and as trustee), the Holders, the Lenders, the Bank Lenders,
the Liquidity Provider and the Agent.
A-2
<PAGE>
"Additional Trustee" shall have the meaning specified in Section
10.02(a) of the Trust Agreement.
"Administrative Fee" shall mean the administrative fee payable in
accordance with the terms and conditions of the Fee Letter.
"Advance Amount" shall mean, as of any date, the amount of the Holder
Advance made by a Holder pursuant to Section 2.2(a) of the Participation
Agreement and evidenced by a Certificate, less any redemptions of the Holder
Advance pursuant to Article IV of the Trust Agreement.
"Affected Bank Lender" shall have the meaning specified in Section
8.5(a) of the Participation Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by, or is under a common
control with, such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing.
"After-Tax Basis" shall mean on a basis such that any payment to be
received or deemed to be received shall be supplemented by a further payment so
that the sum of the two payments, after deducting from such payments the amount
of all Taxes resulting from the receipt or accrual of such payments (net of any
current credits or deductions or other Tax benefits arising therefrom, to the
extent actually realized), shall be equal to the payments to be received or
deemed to have been received.
"Agent" shall mean NationsBank, as collateral agent for the Lenders and
the Holders pursuant to the Loan Agreement and as administrative agent for the
Owner Trustee (in its individual and its trust capacity), the Holders, the
Lenders and the Bank Lenders pursuant to the Participation Agreement and the
Loan Agreement, or any successor agent appointed in accordance with the terms of
the Loan Agreement.
"Aggregate Advanced Amount" shall have the meaning specified in each
Note.
"Aggregate Funded Amount" shall mean, collectively, the Aggregate
Holder Funded Amount and the Aggregate Lender Funded Amount and, individually,
shall mean the Aggregate Holder Funded Amount or the Aggregate Lender Funded
Amount, as the case may be.
"Aggregate Holder Advanced Amount" shall have the meaning specified in
each Certificate.
"Aggregate Holder Funded Amount" shall have the meaning specified in
Section 2.2(a) of the Participation Agreement.
A-3
<PAGE>
"Aggregate Lender Funded Amount" shall have the meaning specified in
Section 2.2(b) of the Participation Agreement.
"Applicable Margin" shall mean the percentage per annum set forth below
opposite the applicable Debt Rating or Consolidated Funded Indebtedness/Cash
Flow Ratio of the Lessee (as determined and adjusted pursuant to the procedures
set forth in the paragraph of this definition following the rate grid).
<TABLE>
<CAPTION>
Consolidated Applicable
Funded Indebtedness/ Debt Rating Applicable Margin Margin for
Cash Flow Ratio or S&P/Moody's for LIBOR Loans CD Loans
<S> <C> <C> <C>
a) Greater than or a) --
Equal to 5.00 to 0.375% 0.375%
1.00
b) Less than 5.00 to b) BBB-/Baa3
1.00 but Greater 0.250% 0.250%
than or Equal to
4.00 to 1.00
c) Less than 4.00 to c) BBB/Baa2
1.00 but Greater 0.225% 0.225%
than or Equal to
3.00 to 1.00
d) Less than 3.00 to d) BBB+/Baa1
1.00 but Greater 0.200% 0.200%
than or Equal to
2.00 to 1.00
e) Less than 2.00 to e) A/A2 or
1.00 higher 0.170% 0.170%
</TABLE>
For purposes of the foregoing, (i) the Applicable Margin on the Closing Date is
0.225% and thereafter the Applicable Margin shall be adjusted on each
Calculation Date based on the most recent Compliance Certificate and upon the
date of receipt of each Notice of Delivery based on such Notice of Delivery,
(ii) if the Lessee fails to provide the Compliance Certificate on or before the
most recently occurring Calculation Date, the Applicable Margin from such
Calculation Date shall be 0.375% until such time that an appropriate Compliance
Certificate is provided whereupon the Applicable Margin shall be determined
based on the information provided in such Compliance Certificate, (iii) if the
applicable Debt Rating and Consolidated Funded Debt/Cash Flow Ratio would
provide for different Applicable Margins the lower of the two Applicable Margins
shall apply, (iv) if the Debt Rating established by Moody's and S & P shall fall
within different categories, the rate shall be determined by reference to the
superior (or numerically lowest) category, (v) if the Debt Rating is changed by
either Moody's or S&P, such change shall be deemed to be effective (for purposes
of determining the Applicable Margin) as of the Calculation Date next following
the date of such change, and (vi) the Applicable Margin applicable from time to
time shall be effective from one Calculation Date or the date of receipt of a
Notice of Delivery, as the case may be, to the next Calculation Date or the date
of receipt of a Notice of Delivery, as
A-4
<PAGE>
the case may be, and any adjustment in the Applicable Margin shall be applicable
to all existing Loans as well as any new Loans made or issued.
"Approved State" shall mean each of Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, Ohio, Pennsylvania, South Carolina,
Tennessee, Virginia, West Virginia and to the extent the Lessee has given notice
thereof pursuant to Section 5.6 of the Participation Agreement, each other state
in the continental United States to which any Unit has been relocated.
"Arrangement Fee" shall mean the arrangement fee payable in accordance
with the terms and conditions of the Fee Letter.
"Assignment Agreement" shall have the meaning specified in Section
8.1(a) of the Participation Agreement.
"Bank Assignment" shall have the meaning specified in Section 8.1(a) of
the Participation Agreement.
"Bank Commitment Expiration Date" shall have the meaning specified in
Section 8.3(a) of the Participation Agreement.
"Bank Lender Termination Date" shall have the meaning specified in
Section 8.5(b) of the Participation Agreement.
"Bank Lenders" shall mean NationsBank and certain other financial
institutions from time to time parties to the Operative Agreements, as bank
lenders.
"Bank of America" shall mean Bank of America National Trust and Savings
Association.
"Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of
1978, 11 U.S.C. ss. 101 et seq.
"Basic Rent" shall mean the sum of (i) the Lessor Basic Rent, plus
without duplication (ii) the Loan Basic Rent, each of the foregoing calculated
as of the applicable Payment Date.
"Basic Term" shall mean a period for lease of the Equipment under the
Lease specified in Section 3.1 of the Lease.
"Basic Term Commencement Date" shall mean January 15, 1998.
"Basic Term Expiration Date" shall mean January 15, 2000.
"Beneficial Interest" shall mean the interest of each Holder under the
Trust Agreement.
"Break-Amount" shall mean the amounts payable by the Owner Trustee
(with funds provided by the Lessee as Supplemental Rent) from time to time under
Section 9.3 of the Participation Agreement on the terms and conditions of such
Section 9.3.
A-5
<PAGE>
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day other than a Saturday, Sunday or a day on which
commercial banking institutions are authorized or required by Law or executive
order to be closed in Charlotte, North Carolina, New York, New York, Atlanta,
Georgia and Salt Lake City, Utah and (ii) with respect to all notices,
determinations, fundings and payments with respect to LIBOR Loans or LIBOR
Holder Advances, any Business Day described in clause (i) above and that is also
a day on which commercial banks in London are open for international business
(including dealings in dollar deposits within the London interbank market).
"Calculation Date" shall mean the date five Business Days after the
date by which the Lessee is required to provide the Compliance Certificate in
accordance with the provisions of Section 5.1(d) of the Participation Agreement.
"Capitalized Lease" shall mean any lease which, in accordance with
GAAP, is required to be capitalized on the balance sheet of the Lessee.
"Capitalized Lease Obligations" of any Person shall mean the aggregate
amount which, in accordance with GAAP, is required to be reported as a liability
on the balance sheet of such Person as lessee under a Capitalized Lease.
"CD Holder Advance" shall mean each Holder Advance at such time as such
Holder Advance bears yield at the CD Rate plus 0.900%.
"CD Loan" shall mean (i) each Loan, at such times as such Loan bears
interest at the CD Rate plus the Applicable Margin, (ii) the Liquidity
Provider's participation in each Loan (at such times as such Loan bears interest
at the CD Rate plus the Applicable Margin) while the Liquidity Provider has
funded amounts outstanding pursuant to the Liquidity Facility with respect to
such Loan and (iii) the amounts extended by a Bank Lender (at such times as such
amounts bear interest at the CD Rate plus the Applicable Margin) to fund the CP
Purchase Price pursuant to Section 8.2(a) of the Participation Agreement.
"CD Rate" shall mean, for any day, with respect to each proposed or
existing CD Loan or CD Holder Advance, as the case may be, a fluctuating rate
per annum determined by the Agent as the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the CD Reserve Percentage and (b) the
CD Assessment Rate. For purposes of this definition, the following terms shall
have the following meanings: "Three-Month Secondary CD Rate" means, for any day,
the secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or if such day is not a Business Day, the next
following Business Day) by the Board of Governors of the Federal Reserve System
(the "Board"), through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate is not so reported, the average (rounded
upwards to the nearest 1/100th of 1%) of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day or next
preceding Business Day by the Agent from three New York City negotiable
certificate of
A-6
<PAGE>
deposit dealers of recognized standing selected by it; "CD Reserve Percentage"
means, for any day, as applied to any calculation of the CD Rate, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days or more;
and "CD Assessment Rate" means, for any day, the rate per annum (rounded upward
to the nearest 1/100 of 1%) determined in good faith by the Agent to be the
average of the rates per annum determined by the Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error)
to be the maximum effective assessment rate per annum payable by the Agent to
the Federal Reserve Insurance Corporation (or any successor) for such day for
insurance on United States dollar time deposits, exclusive of any credit allowed
against such annual assessment on account of assessment payments made or to be
made by such bank. The CD Rate shall be adjusted automatically as of the
effective date of each change in the Assessment Rate.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate of Acceptance" shall have the meaning specified in Section
2.3(c) of the Participation Agreement.
"Certificate of Title" shall mean each certificate of title or
registration respecting any Unit naming the Owner Trustee as the owner of such
Unit and the Agent as the first priority, and sole, lienholder respecting such
Unit.
"Certificates" shall mean, collectively each Class A Certificate, Class
B Certificate and Class C Certificate.
"Class" or "Class of Equipment" shall mean Class A Equipment, Class B
Equipment or Class C Equipment, as the context requires.
"Class A Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class A Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such Certificate, and shall
include each Certificate issued in exchange therefor or replacement thereof
pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
"Class B Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class B Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such Certificate, and shall
include each Certificate issued in exchange therefor or replacement thereof
pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
A-7
<PAGE>
"Class C Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class C Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such Certificate, and shall
include each Certificate issued in exchange therefor or replacement thereof
pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
"Class A Equipment" shall mean the new over-the-road tractors
referenced in each applicable Lease Supplement and identified as Class A
Equipment.
"Class B Equipment" shall mean the used beverage vending equipment, new
rolling stock and new lift trucks referenced in each applicable Lease Supplement
and identified as Class B Equipment.
"Class C Equipment" shall mean the new beverage vending equipment
referenced in each applicable Lease Supplement and identified as Class C
Equipment.
"Class A Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class A Commitment, bearing
interest at the rates and payable as provided in the Loan Agreement, and shall
include each Note issued in exchange therefor or replacement thereof pursuant to
Sections 2.7 or 2.8 of the Loan Agreement.
"Class B Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class B Commitment, bearing
interest at the rates and payable as provided in the Loan Agreement, and shall
include each Note issued in exchange therefor or replacement thereof pursuant to
Sections 2.7 or 2.8 of the Loan Agreement.
"Class C Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class C Commitment, bearing
interest at the rates and payable as provided in the Loan Agreement, and shall
include each Note issued in exchange therefor or replacement thereof pursuant to
Sections 2.7 or 2.8 of the Loan Agreement.
"Closing" shall mean the initial closing of the Overall Transaction, at
which executed copies of, among other things, the Participation Agreement,
Lease, Trust Agreement, the Certificates, the Loan Agreement and the Notes are
delivered.
"Closing Date" shall mean the date as of which the Closing occurs,
which in any event shall be on or prior to April 30, 1997 unless otherwise
agreed by all parties to the Participation Agreement.
"Code" shall mean the Internal Revenue Code of 1986.
A-8
<PAGE>
"Collateral" shall have the meaning specified in the Granting Clause of
the Loan Agreement.
"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement dated as of the Closing Date between the Owner Trustee, the Lessee and
consented to by the Agent.
"Compliance Certificate" shall mean a certificate of the Lessee in the
form of Exhibit D to the Participation Agreement, which shall be delivered from
time to time by the Lessee in accordance with Section 5.1(d) of the
Participation Agreement.
"Commercial Paper" shall mean the promissory notes of the Initial
Lender issued by the Initial Lender in the commercial paper market, the proceeds
of which are used to fund (or to refinance the funding of) a Loan.
"Confidential Information" shall have the meaning specified in Section
10.10 of the Participation Agreement.
"Consolidated Cash Flow" shall have the meaning specified in the Credit
Agreement.
"Consolidated Funded Indebtedness" shall have the meaning specified in
the Credit Agreement.
"Consolidated Funded Indebtedness/Cash Flow Ratio" shall have the
meaning specified in the Credit Agreement.
"Consolidated Operating Income" shall have the meaning specified in the
Credit Agreement.
"Consolidated Subsidiaries" shall have the meaning specified in the
Credit Agreement.
"Contingent Obligation" shall have the meaning specified in the Credit
Agreement.
"Contractual Obligation" shall have the meaning specified in Section
3.2(d) of the Participation Agreement.
"Controlled Group Member" shall mean each trade or business (whether or
not incorporated) which together with the Lessee is treated as a single employer
under Section 4001(b)(1) of ERISA.
"Covered Income Tax" shall have the meaning specified in Section 7.1(b)
of the Participation Agreement.
"CP Purchase Price" shall have the meaning specified in Section 8.2(a)
of the Participation Agreement.
A-9
<PAGE>
"CP Rate" shall mean the interest rate or weighted average of the
rates, at which Commercial Paper is sold from time to time by any placement
agent or commercial paper dealer selected by the Initial Lender, as determined
by the Initial Lender and shall include the interest-bearing equivalent of any
Commercial Paper sold at a discount rate.
"Credit Agreement" shall mean the Amended and Restated Credit Agreement
dated as of December 21, 1995 among the Lessee, the financial institutions
listed on the signature pages thereof, NationsBank, as administrative agent and
syndication agent, and Bank of America, as documentation agent. The Credit
Agreement shall not be deemed to refer to any replacement credit agreement.
"Credit Agreement Event of Default" shall mean an "Event of Default" as
such term is defined in Section 7 of the Credit Agreement.
"Credit Documents" shall mean the Loan Agreement, the Notes and the
Security Documents.
"Credit Support Provider" shall mean the Person or Persons who provide
credit support to the Initial Lender in connection with the Initial Lender's
issuance of Commercial Paper.
"Dealer Fee" shall mean the dealer fee payable in accordance with the
terms and conditions of the Fee Letter.
"Debt Amortization" with respect to any Note shall mean the
amortization schedule of principal payments applicable thereto attached as Annex
2(a), Annex 2(b) or Annex 2(c), as applicable, as to the Loan Agreement.
"Debt Percentage" shall mean for each Class of Equipment the percentage
set forth therefor in Schedule 2 to the Participation Agreement.
"Debt Rate" shall mean (i) while the Initial Lender is the Lender the
interest rate equal to the CP Rate; provided, however, if the Liquidity Provider
has funded amounts outstanding pursuant to the Liquidity Facility with respect
to the Loans, the Debt Rate shall be (a) the LP Rate for the principal amount of
the Loans equal to the aggregate outstanding principal amount funded with
respect to the Loans under the Liquidity Facility and (b) the CP Rate for the
principal amount of the Loans not bearing interest at the LP Rate pursuant to
the preceding subclause (a), and (ii) with respect to Notes held by a Bank
Lender, as Lender, from and after the Effective Date of the Bank Assignment of
such Lender, the LP Rate.
"Debt Rating" shall mean the rating assigned from time to time by
either S&P or Moody's with respect to Funded Indebtedness of the Lessee.
"Default" shall mean, collectively, each Lease Default and each Loan
Agreement Default.
"Determination Date" shall mean the last day of each fiscal quarter of
the Lessee.
"EFC" shall mean Enterprise Funding Corporation, a Delaware
corporation.
A-10
<PAGE>
"Effective Date" shall have the meaning specified in Section 8.1(a) of
the Participation Agreement.
"Eligible Receivable" shall mean, for the purposes of the Liquidity
Facility and the Operative Agreements, as of any date of determination, the
aggregate Equipment Cost for all Units of Equipment leased under all Lease
Supplements, minus the aggregate amounts paid to the Agent on or prior to such
date in respect of either principal payments on Notes or redemption of Holder
Advances.
"Environmental Law" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases or threatened releases of any Hazardous
Material into ambient air, surface water, ground water, publicly owned treatment
works, septic system, or land, or otherwise relating to the handling, storage,
treatment, generation, use, or disposal of Hazardous Material, pollution or to
the protection of health or the environment, including without limitation
CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq.,
and state statutes analogous thereto.
"Environmental Violation" shall mean the receipt by the Lessee of a
notice from any Person of violation under Environmental Law when the violation
referenced in such notice of violation is not remedied in a timely manner.
"Equipment" shall mean the Class A Equipment, the Class B Equipment and
the Class C Equipment purchased or otherwise acquired using proceeds of the
Holder Advances or the Loans, as such is specifically described in each
applicable Lease Supplement.
"Equipment Cost" shall mean, collectively, the aggregate sum of the
purchase price for all the Equipment paid by the Owner Trustee to each Seller
pursuant to Section 2 of the Participation Agreement and as set forth in each
applicable Lease Supplement with respect to the Equipment and, individually,
such purchase price allocable to such Unit.
"Equity Percentage" shall mean for each Class of Equipment the
percentage set forth therefor in Schedule 2 to the Participation Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means an entity which is under common control with
the Lessee within the meaning of Section 4001(a)(14) of ERISA, or is a member of
a group which includes the Lessee and which is treated as a single employer
under Sections 414(b) or (c) of the Code.
"Event of Default" shall mean, collectively, each Lease Event of
Default and each Loan Agreement Event of Default.
"Event of Loss" shall have the meaning specified in Section 11.1 of the
Lease.
"Excepted Property" shall mean (i) all indemnity payments (including
without limitation payments pursuant to Section 7 of the Participation
Agreement, whether made by adjustment to
A-11
<PAGE>
Basic Rent under the Lease or otherwise) to which any Holder, the Owner Trustee
or any of their respective successors, permitted assigns, directors, officers,
employees, servants or agents is entitled pursuant to the Operative Agreements,
(ii) any right, title or interest of the Owner Trustee or any Holder to any
payment which by the terms of Section 17 of the Lease or any corresponding
payment under Section 3.3 of the Lease that is payable to the Owner Trustee or
to any Holder, as the case may be, (iii) any insurance proceeds payable under
insurance maintained by the Owner Trustee or any Holder respecting the
Equipment, (iv) any insurance proceeds payable (or payments with respect to
rights self-insured or policy deductibles) to the Owner Trustee or to any
Holder, or any of their directors, officers, employees, servants or agents under
any insurance maintained by the Lessee pursuant to Section 12 of the Lease or by
any other Person (or governmental indemnities in lieu thereof or in addition
thereto), (v) any amount payable to any Holder by any Transferee as the purchase
price of such Holder's interest in the Trust Estate in compliance with the terms
of the Participation Agreement and the Trust Agreement, (vi) payments owing to
any Holder, including a return of funds to such Holder, in the event the Closing
does not occur, (vii) all right, title and interest of the Owner Trustee and any
Holder to amounts distributable and/or distributed from time to time to them as
provided in Section 6.9 of the Participation Agreement and such other rights as
are specifically reserved or granted to any Holder and the Owner Trustee under
the Loan Agreement, (viii) Transaction Costs and other amounts, fees,
disbursements and expenses paid or payable to or for the benefit of the Owner
Trustee, (ix) upon termination of the Loan Agreement in accordance with the
terms thereof, all remaining property covered by the Security Documents, (x)
payments in respect of yield on the Certificates, (xi) payments in respect of
interest to the extent attributable to payments otherwise referenced in this
definition of "Excepted Property", (xii) the respective rights of the Owner
Trustee or the Holder to the proceeds of the foregoing and (xiii) any rights of
the Holder or the Owner Trustee to demand, collect, sue for or otherwise receive
and enforce payment of the foregoing amounts. For purposes of this definition,
references to the Owner Trustee shall be deemed to refer to the Owner Trustee in
its trust and individual capacities.
"Expenses" shall have the meaning specified in Section 7.2 of the
Participation Agreement.
"Expiration Date" shall mean (i) initially, January 15, 2000 with
respect to all Certificates and (ii) thereafter, if the Lessee properly elects a
Renewal Term for a particular Class of Equipment as provided in Section 22.3 of
the Lease, the Expiration Date for the corresponding Class of Certificates shall
be automatically extended to the last day of such Renewal Term; provided,
however, the Expiration Date for the Class C Certificates shall not be extended
beyond January 15, 2003, unless the Bank Lenders have extended the Bank
Commitment Expiration Date for a period at least as long as the extension period
for the Class C Certificates.
"Facility Fee" shall mean the facility fee payable on July 15, 1997,
October 15, 1997, the Basic Term Commencement Date and thereafter each Scheduled
Payment Date during the Term, which fee shall be the product of the Parallel
Purchase Commitment multiplied by the percentage per annum set forth below
opposite the applicable Debt Rating or Consolidated Funded Indebtedness/Cash
Flow Ratio of the Lessee (as determined and adjusted pursuant to the procedures
set forth in the paragraph of this definition following the rate grid).
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<PAGE>
<TABLE>
<CAPTION>
Consolidated
Funded Indebtedness/ Debt Rating Applicable Percentage
Cash Flow Ratio or S&P/Moody's for Facility Fee
<S> <C> <C>
a) Greater than or a) ---
Equal to 5.00 to 0.250%
1.00
b) Less than 5.00 to b) BBB-/Baa3
1.00 but Greater 0.150%
than or Equal to
4.00 to 1.00
c) Less than 4.00 to c) BBB/Baa2
1.00 but Greater 0.125%
than or Equal to
3.00 to 1.00
d) Less than 3.00 to d) BBB+/Baa1
1.00 but Greater 0.100%
than or Equal to
2.00 to 1.00
e) Less than 2.00 to e) A/A2 or
1.00 higher 0.080%
</TABLE>
For purposes of the foregoing, (i) the Facility Fee on the Closing Date is
0.125% and thereafter the Facility Fee shall be adjusted on each Calculation
Date based on the most recent Compliance Certificate and upon the date of
receipt of each Notice of Delivery based on such Notice of Delivery, (ii) if the
Lessee fails to provide the Compliance Certificate on or before the most
recently occurring Calculation Date, the Facility Fee from such Calculation Date
shall be 0.250% until such time that an appropriate Compliance Certificate is
provided whereupon the Facility Fee shall be determined based on the information
provided in such Compliance Certificate, (iii) if the applicable Debt Rating and
Consolidated Funded Debt/Cash Flow Ratio would provide for a different Facility
Fee the lower of the two Facility Fees shall apply, (iv) if the Debt Rating
established by Moody's and S & P shall fall within different categories, the
Facility Fee shall be determined by reference to the superior (or numerically
lowest) category, (v) if the Debt Rating is changed by either Moody's or S&P,
such change shall be deemed to be effective (for purposes of determining the
Facility Fee) as of the Calculation Date next following the date of such change,
and (vi) the Facility Fee applicable from time to time shall be effective from
one Calculation Date or the date of receipt of a Notice of Delivery, as the case
may be, to the next Calculation Date or the date of receipt of a Notice of
Delivery, as the case may be. The Facility Fee shall be payable to the Agent,
for distribution to each Bank Lender, based on a fraction, the numerator of
which is equal to the Bank Lender's Lender Class Commitment and the denominator
of which is equal to the aggregate Lender Class Commitments of all of the Bank
Lenders.
"Fair Market Sales Value" shall have the meaning specified in Section
15.5 of the Lease.
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum (rounded upwards, if necessary to the
nearest 1/100 of 1%) equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
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<PAGE>
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean the letter agreement dated as of the Closing
Date executed by the Initial Lender and acknowledged and agreed to by the Owner
Trustee and the Lessee.
"Fees" shall mean, collectively, the Program Fee, the Dealer Fee, the
Facility Fee and the Administrative Fee.
"Filing Materials" shall have the meaning specified in Section 3.3(n)
of the Participation Agreement.
"Final Renewal Term Expiration Date" shall mean the date specified
therefor in each applicable Lease Supplement.
"First Security" shall mean First Security Bank, National Association,
a national banking association.
"Funded Indebtedness" shall have the meaning specified in the Credit
Agreement.
"Funding Party" shall mean any Participant, the Liquidity Provider and
each Bank Lender.
"GAAP" shall mean the generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"Governmental Authority" shall mean any nation or government, any
state, province, city, municipality or other political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory,
administrative or other such functions of or pertaining to government.
"Hazardous Materials" shall mean any of the following: (i) any
petroleum or petroleum product, explosives, radioactive materials, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (ii) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (iii) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law. The
foregoing definition shall apply only to regulated quantities of the above
referenced materials and shall not apply to consumer products or
A-14
<PAGE>
materials which normally and customarily are used by the Lessee or are in the
possession of the Lessee in the ordinary course of its business, including in
the operation of the Equipment.
"Holder Advance" shall mean any advance made by any Holder to the Owner
Trustee pursuant to the terms of the Trust Agreement and the Participation
Agreement.
"Holder Agreements" shall mean the Operative Agreements to which any
Holder is or will be a party.
"Holder Class Commitment" shall mean in the aggregate the Holder Class
A Commitment, the Holder Class B Commitment and the Holder Class C Commitment
and individually shall refer to any of the foregoing, as applicable.
"Holder Class A Commitment" shall mean, respecting each Holder, its
respective Class A Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Class B Commitment" shall mean, respecting each Holder, its
respective Class B Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Class C Commitment" shall mean, respecting each Holder, its
respective Class C Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Yield" shall mean, for each day during a Payment Period, (i)
the LIBOR Rate, determined two Business Days prior to the first day of such
Payment Period plus 0.900% or (ii) to the extent the Lessee (on behalf of the
Owner Trustee) so elects, the CD Rate plus 0.900% or the Reference Rate plus
0.500%, unless and until in any case the Agent gives the Owner Trustee notice
that the LIBOR Rate or the CD Rate, as the case may be, cannot be determined or
is unlawful or that any Holder is unable to obtain matching deposits in the
London interbank market respecting any LIBOR Holder Advance or otherwise match
funds with respect to any CD Holder Advance, in which case, upon such notice,
the Holder Yield for all subsequent Payment Periods commencing with the Yield
Payment Date next following such notice, until the Payment Period commencing
immediately following the date which the LIBOR Rate or the CD Rate, as the case
may be, can be determined, is lawful and is capable of being match funded by the
Holders, shall be the Reference Rate plus 0.500%.
"Holders" shall mean NBLC and SunTrust Bank, Atlanta.
"Incorporated Covenants" shall have the meaning specified in Section
5.2 of the Participation Agreement.
"Incorporated Representations" shall have the meaning specified in
Section 5.2 of the Participation Agreement.
"Indebtedness" shall have the meaning specified in the Credit
Agreement.
"Indemnified Person" shall mean the Owner Trustee (in its individual
capacity and as trustee), each Holder, each Lender, each Bank Lender, the
Liquidity Provider, the Liquidity
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<PAGE>
Facility Participants, the Agent, and each of their respective Affiliates,
officers, directors, stockholders, successors, assigns, agents and servants.
"Initial Lender" shall mean EFC.
"Interest Component" shall mean, (i) with respect to any Commercial
Paper issued on an interest bearing basis, the interest payable on such
Commercial Paper at its maturity and (ii) with respect to any Commercial Paper
issued on a discount basis, the portion of the face amount of such Commercial
Paper representing the discount incurred in respect thereof.
"Interest Payment Date" shall mean (i) as to any Loan bearing interest
at the CP Rate, each day the Commercial Paper matures, (ii) as to any LIBOR
Loan, the last day of the Interest Period or other period of time at which the
Loan is to bear interest at the LIBOR Rate applicable to such LIBOR Loan;
provided, if such Interest Period or other period of time is longer than three
months, interest shall also be payable on the last Business Day of the third
month of such Interest Period or other period of time, (iii) as to any ABR Loan,
July 15, 1997, October 15, 1997, the Interim Term Expiration Date and each
Scheduled Payment Date and (iv) as to all Loans, the date of any voluntary or
involuntary payment, prepayment, return or redemption, and the Maturity Date or
the Expiration Date, as the case may be.
"Interest Period" shall mean (i) as to any Loan bearing interest at the
CP Rate, the period, which may not exceed 95 days, beginning on the first day of
such Loan and ending on the last day of such Loan (as selected by the Lessee on
behalf of the Owner Trustee but subject in all cases to Section 2.3(d) of the
Participation Agreement), (ii) as to any LIBOR Loan, the period beginning on the
date of such LIBOR Loan and ending one, two, three or six months thereafter (as
selected by the Lessee on behalf of the Owner Trustee), (iii) as to any ABR Loan
based on the Reference Rate, the period beginning on the date of such ABR Loan
and ending on the maturity date of such ABR Loan (as selected by the Lessee on
behalf of the Owner Trustee) and (iv) as to any ABR Loan based on the CD Rate,
the period beginning on the date of such ABR Loan and ending on the maturity
date of such CD Loan (as selected by the Lessee on behalf of the Owner Trustee);
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following: (x) if any Interest Period would end on a
day which is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except, regarding any LIBOR Loan, that where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (y) no Interest Period shall extend beyond
the Maturity Date or the Expiration Date, as the case may be, and (z) where an
Interest Period for a LIBOR Loan begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of such
calendar month.
"Interim Term" shall have the meaning specified in Section 3.1 of the
Lease.
"Interim Term Commencement Date" shall mean the date set forth in the
applicable Lease Supplement as the Interim Term Commencement Date.
"Interim Term Expiration Date" shall mean January 15, 1998.
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<PAGE>
"Late Rate" shall mean (i) with respect to the portion of any payment
of Rent that would be required to be distributed to any holder of a Note
pursuant to the terms of the Operative Agreements, the lesser of 2% over the
Debt Rate and the maximum interest rate from time to time permitted by Law, and
(ii) with respect to the portion of any payment of Rent that would be required
to be distributed to the Owner Trustee in its individual or trust capacity or
any Holder, the lesser of 2% over the Holder Yield and the maximum interest rate
from time to time permitted by Law.
"Law" shall mean any statute, law, ordinance, regulation, rule,
directive, code, order, writ, license, permit, injunction or decree of any
Tribunal.
"Lease" shall mean the Master Equipment Lease Agreement (Coca-Cola
Trust No. 97-1) dated as of the Closing Date between the Lessor and the Lessee.
"Lease Default" shall mean an event which with notice or lapse of time
or both would become a Lease Event of Default.
"Lease Event of Default" shall mean an Event of Default as specified in
Section 14 of the Lease.
"Lease Supplement" shall mean each Lease Supplement (Coca-Cola Trust
No. 97-1) dated as of the applicable Acceptance Date or the date that any
Replacement Unit is subjected to the Lease in each case between the Lessor and
the Lessee, substantially in the form of Exhibit A to the Lease, covering the
Units delivered on such Acceptance Date or such Replacement Unit, as the case
may be.
"Lender" shall mean the Initial Lender and to the extent any Bank
Lender becomes a holder of a Note, each such Bank Lender.
"Lender Agreements" shall mean the Operative Agreements to which the
Lenders are or will be a party.
"Lender Class Commitment" shall mean in the aggregate the Lender Class
A Commitment, the Lender Class B Commitment and the Lender Class C Commitment
and individually shall refer to any of the foregoing, as applicable.
"Lender Class A Commitment" shall mean respecting each Lender, its
respective Class A Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Class B Commitment" shall mean respecting each Lender, its
respective Class B Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Class C Commitment" shall mean respecting each Lender, its
respective Class C Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Participant" shall mean and include each registered holder from
time to time of any Note issued under the Loan Agreement, including, so long as
it holds any Note issued
A-17
<PAGE>
thereunder and, to the extent the Liquidity Providers fund amounts under either
Liquidity Facility, the Liquidity Providers.
"Lessee" shall mean Coca-Cola Bottling Co. Consolidated, a Delaware
corporation.
"Lessee Agreements" shall mean the Operative Agreements to which the
Lessee is or will be a party.
"Lessor" shall mean First Security, not in its individual capacity
except as expressly provided in the Operating Agreements, but solely as Owner
Trustee under Coca-Cola Trust No. 97-1.
"Lessor Basic Rent" shall mean, (i) with respect to any Scheduled
Payment Date, the Holder Advances scheduled to be repaid on such Scheduled
Payment Date in accordance with Annex 2(a), Annex 2(b) or Annex 2(c), as the
case may be, of the Trust Agreement plus (ii) with respect to any Payment Date,
the amount of yield due on the outstanding Holder Advance on any Payment Date
pursuant to the Trust Agreement and/or any of the Certificates (but not
including interest on any overdue amounts).
"Lessor's Liens" shall mean any Lien affecting, on or in respect of the
Equipment, the Lease or the Trust Estate arising as a result of (i) claims
against the Lessor (in its individual capacity or as Owner Trustee) or any
Holder, not related to the transactions contemplated by the Operative
Agreements, (ii) acts or omissions of the Lessor (in its individual capacity or
as Owner Trustee) or any Holder, not permitted under the Operative Agreements
and in breach of any covenant or agreement of such Person set forth in any of
the Operative Agreements, (iii) Taxes imposed against the Lessor (in its
individual capacity or as Owner Trustee) or any Holder or the Trust Estate which
are not indemnified against by the Lessee pursuant to the Participation
Agreement, except to the extent not due and payable or the amount or validity of
which is being contested in good faith by appropriate proceedings so long as
there is no material risk of the collection of, or other realization upon, the
Lien of the Taxes so contested or the impairment of the Lien of the Loan
Agreement or the loss of the benefit of the Equipment to the Lessee under the
Lease or (iv) claims against the Lessor or any Holder arising out of the
transfer (whether voluntary or involuntary) by the Lessor or any Holder (without
the consent of the Lessee, the Lenders and the Agent) of all or any portion of
their respective interests in the Equipment, the Trust Estate or the Operative
Agreements, other than a transfer pursuant to Sections 10, 11, 12, 15 or 22 of
the Lease.
"LIBOR Holder Advance" shall mean each Holder Advance, at such times as
such Holder Advance bears yield at the LIBOR Rate plus .900%.
"LIBOR Loan" shall mean (i) each Loan, at such times as such Loan bears
interest at the LIBOR Rate plus the Applicable Margin, (ii) the Liquidity
Provider's participation in each Loan (at such times as such Loan bears interest
at the LIBOR Rate plus the Applicable Margin) while the Liquidity Provider has
funded amounts outstanding pursuant to the Liquidity Facility with respect to
such Loan and (iii) the amounts extended by a Bank Lender (at such times as such
amounts bear interest at the LIBOR Rate plus the Applicable Margin) to fund the
CP Purchase Price pursuant to Section 8.2(a) of the Participation Agreement.
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<PAGE>
"LIBOR Rate" shall mean for any Interest Period, Payment Period or
other period of time at which amounts are to bear interest at the LIBOR Rate, as
the case may be, for each LIBOR Loan or LIBOR Holder Advance comprising part of
the same borrowing or advance (including without limitation conversions,
extensions and renewals) the sum of (i) the rate obtained by dividing (a) the
rate at which deposits in dollars are offered to the Agent in the London
Interbank market at approximately 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period, Payment Period or other period of
time at which amounts are to bear interest at the LIBOR Rate, as the case may
be, in an amount approximately equal to the requested LIBOR Loan or LIBOR Holder
Advance, as the case may be, for a period of time approximately equal to
applicable Interest Period, Payment Period or other period of time at which
amounts are to bear interest at the LIBOR Rate, as the case may be, by (b) a
percentage equal to 100% minus the reserve percentage used for determining the
maximum reserve requirement as specified in Regulation D (including without
limitation any marginal, emergency, supplemental, special or other reserves)
that is applicable to the Agent during such Interest Period, Payment Period or
other period of time at which amounts are to bear interest at the LIBOR Rate, as
the case may be, in respect of such LIBOR Loan or LIBOR Holder Advance (or if
more than one percentage shall be so applicable, the daily average of such
percentage for those days in such Interest Period, Payment Period or other
period of time at which amounts are to bear interest at the LIBOR Rate, as the
case may be, during which any such percentage shall be applicable), plus (ii)
the then daily net annual assessment rate (rounded upwards if necessary to the
nearest 1/100 of 1%) as estimated by the Agent for determining the current
annual assessment payable by the Agent to the Federal Deposit Insurance
Corporation in respect of eurocurrency or eurodollar funding, lending or
liabilities.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever or disposition of title, including but not limited to any conditional
sale or title retention arrangement, any assignment, deposit arrangement or
lease intended as, or having the effect of, security.
"Liquidity Documents" shall mean the Liquidity Facility and the
Liquidity Participation Agreement.
"Liquidity Facility" shall mean the agreement between the Initial
Lender and the Liquidity Provider evidencing the obligation of the Liquidity
Provider to provide liquidity support to the Initial Lender in connection with
the issuance of Commercial Paper by the Initial Lender.
"Liquidity Facility Participant" shall mean each Person acquiring from
the Liquidity Provider a participation interest in the Liquidity Facility
pursuant to the Liquidity Participation Agreement.
"Liquidity Participation Agreement" shall mean the Liquidity
Participation Agreement dated as of the effective date thereof between the
Liquidity Provider and each Bank Lender (other than NationsBank).
"Liquidity Provider" shall mean NationsBank and any Person that
provides liquidity support in favor of the Lenders with respect to the Overall
Transaction.
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<PAGE>
"Loan" shall mean each loan extended pursuant to the Loan Agreement.
"Loan Agreement" shall mean the Loan and Security Agreement (Coca-Cola
Trust No. 97-1) dated as of the Closing Date among the Owner Trustee, the
Initial Lender and the Agent.
"Loan Agreement Default" shall mean an event which with notice or the
lapse of time or both would become a Loan Agreement Event of Default.
"Loan Agreement Event of Default" shall have the meaning specified in
Section 4.1 of the Loan Agreement.
"Loan Agreement Investment" shall mean any obligation issued or
guaranteed by the United States or any of its agencies for the payment of which
the full faith and credit of the United States is pledged.
"Loan Basic Rent" shall mean, (i) with respect to any Scheduled Payment
Date, the amount of each Loan scheduled to be repaid on such Scheduled Payment
Date in accordance with Annex 2(a), Annex 2(b) or Annex 2(c), as the case may
be, of the Loan Agreement plus (ii) with respect to any Payment Date, the amount
of interest due on the outstanding Loan on any Payment Date pursuant to the Loan
Agreement and/or any of the Notes (but not including interest on any overdue
amounts).
"LP Rate" shall mean, for each day during an Interest Period or other
period of time at which amounts are to bear interest at the LP Rate, either (i)
as selected by the Lessee (on behalf of the Owner Trustee), the LIBOR Rate plus
the Applicable Margin, the CD Rate plus the Applicable Margin, in each case in
effect two Business Days prior to the first day of such Interest Period or other
period of time at which amounts are to bear interest at the LP Rate or the
Reference Rate, or (ii) if the Agent gives the Owner Trustee and the Lessee
notice that the LIBOR Rate or the CD Rate, as the case may be, cannot be
determined or is unlawful or that any Lender is unable to obtain matching
deposits in the London Interbank market respecting any LIBOR Loan or to match
funds with respect to any CD Loan, the Reference Rate for all Interest Periods
and other periods of time at which amounts are to bear interest at the LP Rate
commencing after the date of such notice and thereafter until the Interest
Period or the other period of time at which amounts are to bear interest at the
LP Rate commencing immediately following the date on which the LIBOR Rate or the
Reference Rate, as the case may be, can be determined, is lawful and as to which
each Lender is able to match fund.
"Majority Holders" shall mean, as of a particular date of
determination, with respect to any action or decision of the Holders, such
Holders retaining more than 51% aggregate of the unpaid Holder Advances, if any,
then outstanding.
"Majority In Interest" shall mean, subject to Section 10.14 of the
Participation Agreement, as of a particular date of determination, with respect
to any action or decision of the holders of the Notes, the holders of more than
51% in aggregate principal unpaid amount of the Notes, if any, then outstanding.
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<PAGE>
"Majority In Interest of Bank Lenders" shall mean as of a particular
date of determination, with respect to any action or decision of the Bank
Lenders, the Bank Lenders holding or having an obligation to purchase or assume
more than 51% of the right, title and interest in and to and obligations under
the Notes from the Initial Lender pursuant to the terms of Section 8 of the
Participation Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U or Regulation G of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"Material Adverse Effect" shall mean a material adverse effect on (i)
the business, condition (financial or otherwise), assets, liabilities or
operations of the Lessee and its Subsidiaries taken as a whole, (ii) the ability
of the Lessee or any of its Subsidiaries to perform its respective obligations
under any Operative Agreement to which it is a party, (iii) the validity or
enforceability of any Operative Agreement or the rights and remedies of the
Owner Trustee, the Holders, the Lenders, the Bank Lenders and the Agent
thereunder, (iv) the validity, priority or enforceability of any Lien on or
other rights of the Lessor or the Agent in the Equipment, taken as a whole,
created by any of the Operative Agreements or (v) the value, utility or useful
life of the Equipment or the use, or ability of the Lessee to use, the
Equipment, taken as a whole, for the purpose for which it was intended.
"Maturity Date" shall mean (i) initially, January 15, 2000 with respect
to all Notes and (ii) thereafter, if the Lessee properly elects a Renewal Term
for a particular Class of Equipment as provided in Section 22.3 of the Lease,
the Maturity Date for the corresponding Class of Notes shall be automatically
extended to the last day of such Renewal Term; provided, however, the Maturity
Date for the Class C Notes shall not be extended beyond January 15, 2003, unless
the Bank Lenders have extended the Bank Commitment Expiration Date for a period
at least as long as the extension period for the Class C Notes.
"Maximum Lessee Risk Amount" shall mean for the Equipment described in
each Lease Supplement an amount equal to the percentage set forth in Schedule 2
to such Lease Supplement under the heading "Maximum Lessee Risk Percentage"
multiplied by the Equipment Cost for such Equipment described in such Lease
Supplement, which Maximum Lessee Risk Amount in all cases shall be an amount not
less than the then outstanding principal balance owed with respect to the Notes
under which a portion of the purchase price of the applicable Equipment was
advanced.
"Maximum Lessor Risk Amount" shall mean for the Equipment described in
each Lease Supplement an amount equal to the percentage set forth in Schedule 3
to such Lease Supplement under the heading "Maximum Lessor Risk Percentage"
multiplied by the Equipment Cost for such Equipment described in such Lease
Supplement.
"Maximum Note Commitment Amount" shall have the meaning specified in
Section 8.2(a) of the Participation Agreement.
"Moody's" shall mean Moody's Investor Service, Inc.
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<PAGE>
"Multiemployer Plan" shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Lessee or any Controlled Group Member has or had an obligation to
contribute.
"NationsBank" shall mean NationsBank, N.A., a national banking
association.
"NBLC" shall mean NationsBanc Leasing Corporation of North Carolina, a
North Carolina corporation.
"Net Investment" shall mean, for the purposes of the Liquidity Facility
and the Operative Agreements, as of any date of determination, the outstanding
principal amount of the Notes.
"Net Receivables Balance" shall mean, for purposes of the Liquidity
Facility and the Operative Agreements, as of any date of determination, the
aggregate Eligible Receivables.
"New Bank Lender" shall have the meaning specified in Section 8.3(d) of
the Participation Agreement.
"New Bank Lender Rating Requirement" shall have the meaning specified
in Section 8.3(d) of the Participation Agreement.
"Non-Excluded Taxes" shall have the meaning specified in Section 9.2(a)
of the Participation Agreement.
"Non-Renewing Bank Lender" shall have the meaning specified in Section
8.3(d) of the Participation Agreement.
"Notes" shall mean, collectively, each Class A Note, Class B Note and
Class C Note.
"Notice of Delivery" shall have the meaning specified in Section 2.3(b)
of the Participation Agreement.
"Notice of Delivery Elections" shall have the meaning specified in
Section 2.3(d) of the Participation Agreement.
"Odd Lot Amount" shall have the meaning specified in Section 2.2 of the
Loan Agreement.
"Officer's Certificate" shall mean a certificate signed (i) in the case
of a corporation, by the Chairman of the Board of Directors, President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such corporation, (ii) in the case of a partnership, by the
Chairman of the Board of Directors, the President or any Vice President, the
Treasurer or an Assistant Treasurer of a corporate general partner, and (iii) in
the case of a commercial bank or trust company, the Chairman or Vice Chairman of
the Executive Committee or the Treasurer, any Trust Officer, any Vice President,
any Executive or Senior or Second or Assistant Vice President, or any other
officer or assistant officer customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, or to whom any
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<PAGE>
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Operative Agreements" shall mean each Notice of Delivery, each
Certificate of Title, the Participation Agreement, the Trust Agreement, the
Certificates, the Loan Agreement, the Notes, the Collateral Agency Agreement,
each Liquidity Participation Agreement, each Assignment Agreement, the Lease,
each Lease Supplement, each Purchase Agreement Assignment, each Purchase
Agreement and the Fee Letter.
"Optional Modification" shall have the meaning specified in Section 9.2
of the Lease.
"Overall Transaction" shall mean the financing and lease transactions
contemplated by the Operative Agreements, including without limitation the
acquisition by the Owner Trustee of the Equipment in connection therewith.
"Owner Trust" or "Trust" or "Coca-Cola Trust No. 97-1" shall mean the
trust created by the Trust Agreement.
"Owner Trustee" shall mean First Security, not in its individual
capacity, except as expressly provided in the Operative Agreements, but solely
as Owner Trustee under Coca-Cola Trust No. 97-1.
"Owner Trustee Agreements" shall mean the Operative Agreements to which
the Owner Trustee, either in its individual or trust capacity, is or will be a
party.
"Parallel Purchase Commitment" shall mean the following: for the
Interim Term $51,343,000 and for the Basic Term an amount equal to the product
of the principal amount of the Notes multiplied by 102% (rounded upward to the
nearest $1000).
"Participants" shall mean the Lenders and the Holders and with respect
to Sections 9.1, 9.2 and 9.3 of the Participation Agreement, the Liquidity
Provider and each Liquidity Facility Participant.
"Participation Agreement" shall mean the Participation Agreement
(Coca-Cola Trust No. 97-1) dated as of the Closing Date among the Lessee, the
Holders, the Owner Trustee, the Initial Lender, the Bank Lenders and the Agent.
"Parts" shall mean all appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
which may from time to time be incorporated or installed in or attached to a
Unit of Equipment or until replaced, if not so incorporated or installed, in
accordance with the terms of Section 9.3 of the Lease.
"Payment Date" shall mean any Scheduled Payment Date, any Interest
Payment Date and any Yield Payment Date.
"Payment Period" shall mean (i) as to any LIBOR Holder Advance, the
period beginning on the date of such LIBOR Holder Advance and ending one, two,
three or six months thereafter
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(as selected by the Lessee on behalf of the Owner Trustee), (ii) as to any ABR
Holder Advance based on the Reference Rate, the period beginning on the date of
such ABR Holder Advance and ending on the maturity date of such ABR Holder
Advance (as selected by the Lessee on behalf of the Owner Trustee) and (iii) as
to any ABR Holder Advance based on the CD Rate, the period beginning on the date
of such ABR Holder Advance and ending on the maturity date of such ABR Holder
Advance (as selected by the Lessee on behalf of the Owner Trustee); provided,
however, that all of the foregoing provisions relating to Payment Periods are
subject to the following: (x) if any Payment Period would end on a day which is
not a Business Day, such Payment Period shall be extended to the next succeeding
Business Day (except, regarding any LIBOR Holder Advance, that where the next
succeeding Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (y) no Payment Period shall extend beyond the
Maturity Date or the Expiration Date, as the case may be, and (z) where a
Payment Period for a LIBOR Holder Advance begins on a day for which there is no
numerically corresponding day in the calendar month in which the Payment Period
is to end, such Payment Period shall end on the last Business Day of such
calendar month.
"PBGC" shall mean the Pension Benefit Guaranty Corporation (or any
successor thereto.)
"Pension Plan" shall mean any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Contest" shall mean any contest by the Lessee with respect
to any Permitted Lien or any Taxes incurred with respect to which the Lessee has
provided the Owner Trustee, the Holders, the Lenders and the Agent a legal
opinion from outside counsel to the Lessee (in form and substance reasonably
satisfactory to the Owner Trustee and the Agent) stating in substance that there
is substantial authority for such position, and so long as the Lessee shall
contest, in good faith and at its expense, the existence, the amount or the
validity thereof, the amount of the damages caused thereby, or the extent of its
liability therefor, by appropriate proceedings which shall have no material
likelihood of resulting in (i) the collection of, or other realization upon, the
Lien or the Taxes so contested, (ii) the sale, forfeiture or loss of the
Equipment, or any part thereof, or Rent, or any portion thereof, (iii) any
interference with the use of the Equipment, taken as a whole, or (iv) any
interference with the payment of the Rent, or any portion thereof.
"Permitted Investments" shall mean (i) direct obligations of the United
States of America and agencies thereof for which the full faith and credit of
the United States is pledged, (ii) obligations fully guaranteed by the United
States of America, (iii) certificates of deposit issued by, or bankers
acceptances of, or time deposits with, any bank, trust company or national
banking association incorporated or doing business under the Laws of the United
States of America or one of the States thereof having combined capital and
surplus and retained earnings of at least $500,000,000 (including without
limitation any Lender and the Owner Trustee if such conditions are met) and
having a rating assigned to the long-term unsecured debt of such institutions by
S&P and Moody's at least equal to AA and Aa2, respectively, (iv) commercial
paper of companies, banks, trust companies or national banking associations
incorporated or doing business under the Laws of the United States of America or
one of the States thereof and in each case having a rating assigned to such
commercial paper by S&P or Moody's (or, if neither such organization shall rate
such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) equal to the highest rating
assigned by such organization, and (v) a money
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market fund registered under the Investment Company Act of 1940, as amended, the
portfolio of which is limited to the investments described in clauses (i)
through (iv) above; provided that if all of the above investments are
unavailable, the entire amount to be invested may be used to purchase federal
funds from an entity described in (iii) above; and; provided, further, that no
investment shall be eligible as a "Permitted Investment" unless the final
maturity or date of return of such investment is 90 days or less from the date
of purchase thereof.
"Permitted Liens" shall mean, with respect to the Equipment: (i) the
interests of the Lessee and the Owner Trustee under the Lease and the Lease
Supplement, (ii) the interests of the Lessee and any sublessee as provided in
any sublease permitted pursuant to Section 21 of the Lease, (iii) any Liens
thereon for Taxes not due and payable or the amount or validity of which is
being contested pursuant to a Permitted Contest so long as there exists no
material risk of sale, forfeiture, loss or loss of, or interference with use or
possession of, any Unit or impairment of the interests of the Owner Trustee
therein, criminal sanctions arising therefrom or interference with the payment
of Rent and appropriate reserves with respect thereto are maintained in
accordance with GAAP, (iv) any Liens of mechanics, suppliers, materialmen,
laborers, employees, repairmen and other like Liens arising in the ordinary
course of the Lessee's (or if a sublease is then in effect, any sublessee's)
business securing obligations which are not due and payable or the amount or
validity of which is being contested in good faith at the expense of the Lessee
so long as there exists no material risk of sale, forfeiture, loss, or loss of
or interference with use or possession of any Unit or impairment of the
interests of the Owner Trustee therein or the Lien of the Agent therein, any
criminal sanctions arising therefrom or any interference with the payment of
Rent, (v) the Lien granted to the Agent under and pursuant to the Loan
Agreement, if any, and the respective rights of the Lenders, the Holders and the
Owner Trustee under the Operative Agreements, (vi) Liens arising out of any
judgment or award against the Lessee (or any sublessee permitted pursuant to
Section 21 of the Lease) with respect to which an appeal or proceeding for
review being prosecuted in good faith and for the payment of which adequate
reserves have been provided as required by GAAP or other appropriate provisions
have been made and with respect to which there shall have been secured a stay of
execution pending such appeal or proceeding for review and there exists no
material risk of sale, forfeiture, loss, or loss of or interference with the use
or possession of any Unit or any interest therein or impairment of the interests
of the Owner Trustee therein or the Lien of the Agent therein, any criminal
sanctions arising therefrom or any interference with the payment of Rent, (vii)
salvage rights of insurers under insurance policies maintained pursuant to
Section 12 of each Lease and (viii) other Liens bonded to the reasonable
satisfaction of the Holders and the Lenders.
"Permitted Subleases" shall have the meaning specified in Section 21 of
the Lease.
"Person" shall mean an individual, partnership, corporation, trust,
limited liability company, association or unincorporated organization or any
Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) to which Section 4021 of ERISA applies and (i) which is
maintained for employees of the Lessee or any Controlled Group Member or (ii) to
which the Lessee or any Controlled Group Member made, or was required to make,
contributions at any time within the preceding five years.
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<PAGE>
"Prime Rate" shall mean the per annum rate of interest announced from
time to time by NationsBank as its prime rate. The Prime Rate does not
necessarily represent the lowest or best rate actually charged to any customer.
Any Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate. The Prime Rate shall change automatically and
without notice from time to time and when the prime rate of NationsBank changes.
"Proceeds of Sale" shall mean the amount received by the Lessor from
any Third Party Purchaser of any Unit pursuant to a sale of such Unit to such
Third Party Purchaser in accordance with Sections 10 or 22 of the Lease.
"Program Fee" shall mean the program fee payable in accordance with the
terms and conditions of the Fee Letter.
"Purchase Agreement" shall mean any agreement between any Seller and
the Lessee, or any Affiliate of the Lessee, respecting any of the Equipment.
"Purchase Agreement Assignment" shall mean each Purchase Agreement
Assignment (Coca-Cola Trust No. 97-1), dated as of the applicable Acceptance
Date, among the Lessee, the Lessor and the applicable Seller.
"Recourse Amount" shall have the meaning specified in Section 4.6 of
the Loan Agreement.
"Reference Rate" shall mean, for any day, a fluctuating rate per annum
equal to the greater of (i) the Prime Rate in effect on such day, or (ii) the
Federal Funds Effective Rate in effect on such day plus 0.500%. Any change in
the Reference Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Reference Rate Holder Advance" shall mean each Holder Advance at such
time as such Holder Advance bears yield at the Reference Rate plus 0.500%.
"Reference Rate Loan" shall mean (i) each Loan, at such times as such
Loan bears interest at the Reference Rate, (ii) the Liquidity Provider's
participation in each Loan (at such times as such Loan bears interest at the
Reference Rate) while the Liquidity Provider has funded amounts outstanding
pursuant to the Liquidity Facility with respect to such Loan and (iii) the
amounts extended by a Bank Lender (at such times as such amounts bear interest
at the Reference Rate) to fund the CP Purchase Price pursuant to Section 8.2(a)
of the Participation Agreement.
"Renewal Term" shall mean, with respect to any Unit, any term in
respect of which the Lessee shall have exercised its option to renew the Lease
for such Unit pursuant to Section 22.3 thereof.
"Renewing Lender" shall have the meaning specified in Section 8.3(d) of
the Participation Agreement.
"Rent" shall mean, for any Unit, all Basic Rent and Supplemental Rent
therefor.
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"Replacement Lenders" shall have the meaning specified in Section
8.3(d) of the Participation Agreement.
"Replacement Unit" shall mean a Unit of Equipment which shall have been
leased under the Lease pursuant to Section 11 thereof.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"Requirement of Law" shall mean, as to any Person, the certificate or
articles of incorporation (or association) and by-laws or other organizational
or governing documents of such Person, and any Law or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Required Modification" shall have the meaning specified in Section 9.1
of the Lease.
"Responsible Officer" shall mean, with respect to the subject matter of
any covenant, agreement or obligation of any party contained in any Operative
Agreement, the Chairman of the Board of Directors, Chief Executive Officer,
Chief Financial Officer, President, any Vice President, Treasurer, Assistant
Treasurer or other officer, who in the normal performance of his operational
responsibility would have knowledge of such matters and the requirements with
respect thereto; provided, however, that with respect to the Owner Trustee, such
terms shall mean any officer of the Owner Trustee in its corporate Trust
Administration who has responsibility for administering the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Sales Expenses" shall mean (i) all property, excise, sales, transfer
and use taxes and other taxes (as such may be applicable to the sale or transfer
of the Equipment), (ii) all reasonable fees, costs and expenses of such sale or
transfer of the Equipment (including without limitation reasonable fees, costs
and expenses of attorneys or those associated with transportation, storage,
security or insurance) incurred by the Lessor and (iii) any and all other
amounts incurred in connection with such sale or transfer of the Equipment for
which the Lessor would be liable (if not paid) or which (if not paid) would
constitute a Lien on the Equipment or any Unit.
"Scheduled Acceptance Date" shall have the meaning specified in Section
2.6(b) of the Participation Agreement.
"Scheduled Payment Date" shall mean any date set forth on Annexes 2(a),
2(b) and 2(c) of the Loan Agreement and Annexes 2(a), 2(b) and 2(c) of the Trust
Agreement for a scheduled payment of Loans and Holder Advances.
"Securities Act" shall mean the Securities Act of 1933 and the
Securities Act of 1934.
"Security" shall have the same meaning specified in Section 2(1) of the
Securities Act.
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"Security Documents" shall mean, collectively, the Loan Agreement, the
Lease and each Lease Supplement (to the extent the Lease is construed as a
security instrument) and all other security documents hereafter delivered to the
Agent granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Lessor under the Loan Agreement and/or under
any of the other Operative Agreements or to secure any guarantee of any such
obligations and liabilities.
"Segregated Excepted Property" shall mean Excepted Property referenced
in clauses (i), (iii), (iv) (to the extent relating to proceeds of any liability
insurance policies), (v) and (viii) of the definition of "Excepted Property",
proceeds thereof and the right to institute an action at Law or in equity for
each of the foregoing, all of which shall be payable to the appropriate Persons
(i) in accordance with written instructions furnished to the Lessee by such
Persons, (ii) as otherwise provided in any of the Operative Agreements or (iii)
as required by Law.
"Seller" shall mean each seller conveying good and marketable legal
title in favor of the Lessor with respect to any Equipment or any vendor of any
Equipment identified by the Lessee as a party to whom payment is owed with
respect to such Equipment.
"Severable Modification" shall have the meaning specified in Section
9.2 of the Lease.
"Stipulated Loss Value" shall mean for any Unit as of any date of
determination the amount determined by multiplying the Equipment Cost for such
Unit by the relevant percentage set forth in Schedule 4 to each applicable Lease
Supplement. There shall be one such percentage specification for the Interim
Term, and a table of percentages specified for all subsequent periods.
Stipulated Loss Value as of any date of determination (a) shall not include any
Basic Rent payable on such date and (b) in all cases shall be an amount not less
than the outstanding principal balance owed with respect to the applicable Notes
and the unpaid Holder Advances owed with respect to the applicable Certificates,
in each case evidencing amounts funded with respect to the purchase of the
particular Equipment.
"Storage Period" for any Unit of Equipment shall have the meaning
specified in Section 6.3 of the Lease.
"Subsidiary" shall mean, with respect to any Person, (i) any
corporation of which a majority (by number of shares or number of votes) of any
class of outstanding capital stock normally entitled to vote for the election of
one or more directors (regardless of any contingency which may suspend or dilute
the voting rights of such class) is owned directly or indirectly by such Person
or one or more Subsidiaries and (ii) any limited liability company of which the
members consist solely of the Person or Subsidiaries.
"SunTrust Bank, Atlanta" shall mean SunTrust Bank, Atlanta, a Georgia
banking corporation.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee is obligated to pay under the Operative
Agreements to or on behalf of any of the other parties thereto, including
without limitation Stipulated Loss Value and amounts
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payable pursuant to Section 3.3 of the Lease and Section 2.5 of the
Participation Agreement whether such amounts are stated as the obligations of
the Lessee, the Owner Trustee or any other Person. There shall be no duplication
between Basic Rent and Supplemental Rent.
"Taxes" shall have the meaning specified in Section 7.1(a) of the
Participation Agreement.
"Term" shall mean the Interim Term, the Basic Term and all Renewal
Terms, if any.
"Termination Date" shall have the meaning specified in Section 10.1 of
the Lease.
"Termination Event" shall mean a Loan Agreement Default.
"Third Party Purchaser" shall mean a purchaser of any Unit which is
financially capable of purchasing such Unit, is reasonably acceptable to the
Lessor and is not an Affiliate or Subsidiary of the Lessee.
"Total Equipment Cost" shall mean the aggregate sum of the Equipment
Cost for all Units.
"Tranche End Date" shall have the meaning specified in Section 8.2(a)
of the Participation Agreement.
"Transaction Costs" shall have the meaning specified in Section 2.5(a)
of the Participation Agreement.
"Transfer and Administration Agreement" shall mean, for purposes of the
Liquidity Facility and the Operative Agreements, the Loan Agreement and the
Participation Agreement, collectively.
"Transferee" shall have the meaning specified in Section 6.1(b) of the
Participation Agreement.
"Transferor" shall have the meaning specified in Section 6.1(b) of the
Participation Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial or other court or government body, subdivision, agency, department,
commission, board, bureau of instrumentality of any governmental body.
"Trust Agreement" shall mean the Trust Agreement (Coca-Cola Trust No.
97-1) dated as of The Closing Date among the Holders and First Security.
"Trust Estate" shall have the meaning specified in Section 1.01 of the
Trust Agreement.
"Underlying CP Rate" shall have the meaning specified in Section
2.3(d)(ii) of the Participation Agreement.
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"Unit" shall mean each unit or item of Equipment.
"United States" shall mean the United States of America.
"Yield Payment Date" shall mean (i) as to any LIBOR Holder Advance, the
last day of the Payment Period or other period of time at which the Holder
Advance is to bear yield at the LIBOR Rate applicable to such LIBOR Holder
Advance; provided, if such Payment Period or other period of time is longer than
three months, yield shall also be payable on the last Business Day of the third
month of such Payment Period or other period of time, (ii) as to any ABR Holder
Advance, July 15, 1997, October 15, 1997, the Interim Term Expiration Date and
each Scheduled Payment Date and (iii) as to all Holder Advances, the date of any
voluntary or involuntary payment, prepayment, return or redemption, and the
Maturity Date or the Expiration Date, as the case may be.
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MASTER EQUIPMENT LEASE AGREEMENT
(Coca-Cola Trust No. 97-1)
Dated as of April 10, 1997
Between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity except
as expressly provided herein, but
solely as Owner Trustee under Coca-Cola Trust No. 97-1,
as Lessor
and
COCA-COLA BOTTLING CO. CONSOLIDATED,
as Lessee
CERTAIN OF THE RIGHT, TITLE AND INTEREST OF LESSOR IN AND TO THIS LEASE AND THE
RENT DUE AND TO BECOME DUE HEREUNDER (EXCLUDING THE EXCEPTED PROPERTY) HAVE BEEN
ASSIGNED AS COLLATERAL SECURITY TO, AND ARE SUBJECT TO A SECURITY INTEREST
GRANTED BY LESSOR, AS DEBTOR, IN FAVOR OF, NATIONSBANK, N.A., AS AGENT FOR THE
BENEFIT OF THE LENDERS AND THE HOLDERS, AS SECURED PARTY. INFORMATION CONCERNING
SUCH SECURITY INTEREST MAY BE OBTAINED FROM NATIONSBANK, N.A., AS AGENT,
PURSUANT TO THE NOTICE PROVISIONS SET FORTH IN SECTION 20 OF THIS LEASE. SEE
SECTION 24.2 OF THIS LEASE FOR INFORMATION CONCERNING THE RIGHTS OF THE HOLDERS
OF THE VARIOUS COUNTERPARTS HEREOF INCLUDING WITHOUT LIMITATION THE ORIGINAL
CHATTEL PAPER COPY HEREOF.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 1. Definitions..................................................................................1
SECTION 2. Acceptance and Leasing of Equipment..........................................................1
SECTION 3. Term and Rent................................................................................1
3.1 Lease Term.............................................................................1
3.2 Basic Rent.............................................................................2
3.3 Supplemental Rent......................................................................2
3.4 Manner of Payments.....................................................................3
3.5 Minimum Rent...........................................................................4
SECTION 4 Ownership and Equipment Identification........................................................4
4.1 Retention of Title; Accounting Characterization; Finance Lease.........................4
4.2 (Intentionally Omitted)................................................................5
4.3 Certain Designations...................................................................5
4.4 Titled Equipment.......................................................................5
SECTION 5. Disclaimer of Warranties.....................................................................5
SECTION 6. Delivery of Equipment; Condition of Equipment; Storage.......................................6
6.1 Delivery of Equipment..................................................................6
6.2 Condition of Equipment.................................................................7
6.3 Storage................................................................................7
6.4 Delivery to Lessor.....................................................................8
SECTION 7. Liens........................................................................................8
SECTION 8. Maintenance and Operation; Possession and Use................................................8
8.1 Maintenance and Operation..............................................................8
8.2 Possession and Use.....................................................................8
SECTION 9. Modifications................................................................................9
9.1 Required Modifications.................................................................9
9.2 Optional Modifications.................................................................9
9.3 Replacement of Parts...................................................................9
SECTION 10. Voluntary Early Termination...............................................................10
10.1 Right of Termination....................................................................10
10.2 Bid Solicitation Process................................................................11
SECTION 11. Loss, Destruction, Requisition, Etc.......................................................11
11.1 Event of Loss...........................................................................11
11.2 Replacement or Payment upon Event of Loss...............................................11
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11.3 Basic Rent Termination..................................................................12
11.4 Disposition of Equipment; Replacement of Equipment......................................13
11.5 (Intentionally Omitted).................................................................13
11.6 Reservation of Amounts Regarding Lease Default or Lease Event of Default................13
SECTION 12. Insurance.................................................................................14
SECTION 13. Lessor's Inspection Rights................................................................14
SECTION 14. Events of Default.........................................................................14
SECTION 15. Remedies..................................................................................16
15.1 Remedies................................................................................16
15.2 Cumulative Remedies.....................................................................18
15.3 No Waiver...............................................................................19
15.4 Lessee's Duty to Return Equipment Upon a Lease Event of Default.........................19
15.5 Fair Market Sales Value.................................................................19
SECTION 16. Further Assurances; Expenses..............................................................19
16.1 Further Assurances......................................................................19
16.2 Expenses................................................................................20
SECTION 17. Lessor's Right to Perform.................................................................20
SECTION 18. Assignment................................................................................20
18.1 Assignment by Lessor....................................................................20
18.2 ASSIGNMENT BY LESSEE....................................................................21
SECTION 19. Net Lease, Etc............................................................................21
SECTION 20. Notices...................................................................................22
SECTION 21. Sublease..................................................................................22
SECTION 22. End of Term Purchase, Sale and Renewal Options.............................................23
22.1 Election of End of Term Options.........................................................23
22.2 Purchase by Lessee; Purchase by Third Party Purchasers..................................23
22.3 Renewal Option..........................................................................25
SECTION 23. Limitation of Lessor's Liability..........................................................25
SECTION 24. Miscellaneous.............................................................................25
24.1 Governing Law; Waiver of Jury Trial; Severability.......................................25
24.2 Execution in Counterparts...............................................................26
24.3 Personal Property Taxes.................................................................26
24.4 Amendments and Waivers..................................................................26
24.5 Business Days...........................................................................26
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24.6 Directly or Indirectly..................................................................27
24.7 Incorporation by Reference..............................................................27
24.8 Uniform Commercial Code.................................................................27
24.9 Break-Amount............................................................................27
24.10 Title Representation by Lessee........................................................27
EXHIBIT A - Lease Supplement
APPENDIX A - Definitions
iii
<PAGE>
MASTER EQUIPMENT LEASE AGREEMENT
(Coca-Cola Trust No. 97-1)
THIS MASTER EQUIPMENT LEASE AGREEMENT (Coca-Cola Trust No. 97-1) is
dated as of April 10, 1997 (as amended, modified, supplemented, restated and/or
replaced from time to time, the "Lease") between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
except as expressly provided herein, but solely as Owner Trustee under Coca-Cola
Trust No. 97-1 (together with its successors and assigns permitted hereunder,
the "Lessor"), and COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation
(together with its successors and assigns permitted hereunder, the "Lessee").
W I T N E S S E T H :
SECTION 1. Definitions.
Unless the context otherwise requires, all capitalized terms used
herein without definition shall have the respective meanings set forth in
Appendix A hereto for all purposes of this Lease. The General Provisions of
Appendix A hereto are hereby incorporated by reference herein.
SECTION 2. Acceptance and Leasing of Equipment.
Subject to satisfaction or waiver of the conditions set forth in
Sections 4.1 and 4.2 of the Participation Agreement, Lessor hereby agrees on the
applicable Acceptance Date for each Unit (a) to accept delivery of such Unit
from the appropriate Seller simultaneously with the delivery of such Unit from
such Seller, as acceptance shall be evidenced by the execution and delivery by
Lessor (or such other parties referenced below) of a Certificate of Acceptance
with respect to such Unit and (b) to lease such Unit to Lessee hereunder. On the
applicable Acceptance Date for each Unit, Lessee hereby agrees to lease from
Lessor hereunder each Unit, as evidenced by the execution and delivery by Lessee
and Lessor of a Lease Supplement (substantially in the form of Exhibit A hereto)
covering such Unit. Lessor hereby authorizes Lessee or an authorized
representative of Lessee to act on behalf of Lessor to accept delivery of each
Unit and to execute and deliver Certificates of Acceptance with respect thereto,
all in accordance with Section 2.3(c) of the Participation Agreement. Lessee
hereby agrees that acceptance of delivery of any Unit by Lessee or its
authorized representative on behalf of Lessor shall, without further act,
irrevocably constitute acceptance by Lessee (as between Lessor and Lessee) of
such Unit for all purposes of this Lease.
SECTION 3. Term and Rent.
3.1 Lease Term.
The interim term of this Lease (the "Interim Term") for each Unit shall
commence on the applicable Interim Term Commencement Date and subject to earlier
termination pursuant to
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Sections 10, 11 and 15, shall expire on the Interim Term Expiration Date. The
Interim Term Expiration Date with respect to any Unit shall not be later than
the Basic Term Commencement Date for such Unit.
The basic term of this Lease (the "Basic Term") for each Unit shall
commence on the Basic Term Commencement Date and subject to earlier termination
pursuant to Sections 10, 11 and 15, shall expire on the Basic Term Expiration
Date. Subject and pursuant to Section 22.3, Lessee may elect one or more Renewal
Terms for all, but not less than all, the Equipment in a particular Class;
provided, Lessee may not renew this Lease respecting any Unit in a particular
Class unless Lessee renews this Lease respecting all Units in such Class at the
same time.
3.2 Basic Rent.
Lessee hereby agrees to pay Basic Rent to Lessor for each Unit
throughout the Term in consecutive installments payable in arrears on each
Payment Date during the Term. In connection with (and simultaneously with) each
such payment, Lessee shall provide notice to Lessor specifying the amount of
such payment of Basic Rent applicable to Class A Equipment, Class B Equipment
and/or Class C Equipment.
3.3 Supplemental Rent.
Lessee hereby agrees to pay to Lessor, or to whomsoever shall be
entitled thereto, any and all Supplemental Rent, upon the date the same shall
become due and owing, or where no due date is specified, within 30 days after
demand by the Person entitled thereto. In connection with each such payment,
Lessee shall provide notice to Lessor specifying the amount of such payment of
Supplemental Rent applicable to Class A Equipment, Class B Equipment and/or
Class C Equipment. In the event of any failure on the part of Lessee to pay any
Supplemental Rent due and owing to (i) Lessor, Lessor shall have all rights,
powers and remedies provided for herein or by Law or equity or otherwise as in
the case of nonpayment of Basic Rent or (ii) to any Person (other than Lessor),
such Person shall have all rights, powers and remedies available at Law or in
equity. In clarification of the foregoing and not in limitation of Lessee's
general obligation to pay all amounts of Supplemental Rent due and owing from
time to time, Lessee hereby agrees to pay as Supplemental Rent (a) on demand, to
the extent permitted by applicable Law, an amount equal to interest at the
applicable Late Rate on (i) any part of any installment of Basic Rent not paid
when due for any period for which the same shall be overdue and (ii) any payment
of Supplemental Rent not paid when due or within 30 days after such Supplemental
Rent has been demanded by the Person entitled thereto as referenced above in
this Section 3.3, as the case may be, for the period from such due date or
demand until the same shall be paid, (b) in the case of a prepayment of any Note
and/or any early redemption of any Certificate as a result of the voluntary
early termination of this Lease with respect to any Equipment pursuant to
Section 10, on the date of such prepayment and/or early redemption, an amount
equal to the applicable Break-Amount, if any, payable in respect of such Note
and/or Certificate being prepaid at either such time, (c) all amounts due and
owing under the Operative Agreements by any Person from time to time (except for
such amounts that (i) have otherwise been paid by Lessee as Basic Rent and (ii)
are otherwise due and owing by (A) the Holders to the Owner Trustee pursuant to
Section 6.03 of the Trust
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Agreement or (B) the Lenders to the Agent pursuant to Section 8.4 of the Loan
Agreement (provided, the obligations of the Holders and the Lenders described in
this subsection (ii) shall not diminish the indemnification obligations of
Lessee under the Operative Agreements), (d) any other amounts due and owing to
the Participants or the Bank Lenders under the Operative Agreements, including
without limitation pursuant to Sections 9.1, 9.2 and 9.3 of the Participation
Agreement, (e) all amounts due and owing from time to time with regard to the
Arrangement Fee and/or the Fees, (f) all amounts due and owing from time to time
to a Bank Lender pursuant to Section 8.2(b) of the Participation Agreement, (g)
the Odd Lot Amount, (h) the out-of-pocket cost and expenses, if any, of the
Initial Lender and the Bank Lenders under Section 8.2(b) of the Participation
Agreement and (i) the amount payable by Lessor under the Loan Agreement as the
Interest Component of Commercial Paper on each day that Commercial Paper
matures, to the extent such interest has accrued since the preceding Scheduled
Payment Date on any Commercial Paper which was outstanding at any time since the
preceding Scheduled Payment Date.
3.4 Manner of Payments.
Until such time as the Loan Agreement has been discharged pursuant to
its terms, all Rent (excluding Segregated Excepted Property but including all
other Excepted Property) shall be paid by Lessee to the Agent on behalf of
Lessor to an account or location in the United States specified by the Agent
from time to time hereafter. Segregated Excepted Property shall be paid by
Lessee directly to the Person entitled to receive the same. All Rent and other
amounts payable hereunder from time to time (including without limitation
amounts payable by Third Party Purchasers and insurers) shall be paid by Lessee
or such other Person in funds consisting of lawful currency of the United States
of America, which (subject to the second paragraph of this Section 3.4) shall be
immediately available to the recipient not later than 11:00 A.M. (Eastern time)
on the date of such payment. Subsequent to the discharge of the Loan Agreement
pursuant to its terms, all Rent payable to the Agent pursuant to the first
sentence of this Section 3.4 shall be paid to Lessor (or its designee) to an
account or location in the United States specified by such Person from time to
time hereafter.
Whenever the date scheduled for any payment to be made hereunder shall
not be a Business Day, then such payment need not be made on such scheduled date
but may be made on the next succeeding Business Day with the same force and
effect as if made on such scheduled date (subject to accrual and payment of
interest or yield, as the case may be, for the period of such extension) on such
next succeeding Business Day); provided, notwithstanding the foregoing, (i)
where the next succeeding Business Day falls in the next succeeding calendar
month such payment shall be made on the next preceding Business Day, (ii) no
payment date shall extend beyond the Maturity Date or the Expiration Date and
(iii) where a payment period begins on the day for which there is no numerically
corresponding day in the calendar month in which such payment period is to end,
such payment period shall end on the last Business Day of such calendar month.
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3.5 Minimum Rent.
Notwithstanding any language to the contrary contained herein or in any
other Operative Agreement, Rent payable hereunder shall at all times be
sufficient to satisfy the provisions of Section 6.8 of the Participation
Agreement.
SECTION 4 Ownership and Equipment Identification.
4.1 Retention of Title; Accounting Characterization; Finance
Lease.
(a) Lessor shall and hereby does retain full legal title to each and
every Unit of the Equipment notwithstanding the delivery to and possession and
use of the Equipment by Lessee hereunder or any sublessee under any sublease
permitted hereby.
(b) Lessor and Lessee intend that (i) for financial accounting purposes
with respect to Lessee (A) this Lease will be treated as an "operating lease",
(B) Lessor will be treated as the owner and lessor of the Equipment and (C)
Lessee will be treated as the lessee of the Equipment, but (ii) for all federal,
state and local income tax purposes, bankruptcy purposes, regulatory purposes,
commercial Law and all other purposes (A) this Lease will be treated as a
financing arrangement with Lessor, pursuant to the terms of this Lease, being
granted a purchase money security interest in the Equipment and (B) Lessee will
be treated as the owner of the Equipment and will be entitled to all tax
benefits ordinarily available to owners of property similar to the Equipment for
such tax purposes. Notwithstanding the foregoing, neither party hereto has made,
or shall be deemed to have made, any representation or warranty as to the
availability of any of the foregoing treatments under applicable accounting
rules, tax, bankruptcy, regulatory or commercial Law or under any other set of
rules. Lessee shall claim the cost recovery deductions associated with the
Equipment, and Lessor shall not, to the extent not prohibited by Law, take on
its tax return a position inconsistent with Lessee's claim of such deductions.
To the extent reasonably requested by Lessee, Lessor shall cooperate with Lessee
to allow Lessee to obtain the contemplated tax benefits of this Lease referenced
above, including without limitation the filing of any statements with respect to
tax abatements or requirements; provided, any such statements and/or other
documentation so required of Lessor (1) shall be produced by Lessee for
signature by Lessor and (2) shall be reasonably acceptable to Lessor and any
professionals selected by Lessor for such review. Lessee shall pay all
reasonable out-of-pocket amounts arising with respect to the matters described
in the preceding sentence, including without limitation the reasonable fees and
reasonable out-of-pocket expenses of any and all professionals working on behalf
of Lessor with regard to any such matter.
(c) For all purposes other than as set forth in clause (i) of Section
4.1(b), Lessor and Lessee intend this Lease to constitute a finance lease and
not a true lease. Lessor and Lessee further intend and agree that, for the
purpose of securing Lessee's obligations hereunder, (i) this Lease shall be
deemed to be a security agreement and financing statement within the meaning of
Article 9 of the Uniform Commercial Code with respect to the Equipment and all
proceeds (including without limitation insurance proceeds thereof), (ii) Lessee
hereby grants to Lessor, a Lien on all of Lessee's right, title and interest in
and to the Equipment and all proceeds (including
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without limitation insurance proceeds thereof) of the conversion, voluntary or
involuntary, of the foregoing into cash, investments, securities or other
property, whether in the form of cash, investments, securities or other
property, and an assignment of all rents, profits and income produced by the
Equipment, such Lien to secure all obligations of Lessee under this Lease and
the other Operative Agreements and (iii) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to
have been given for the purpose of perfecting such Lien under applicable Law.
Lessor and Lessee shall promptly take such actions as may be necessary or
advisable in either party's reasonable opinion (including without limitation the
filing of Uniform Commercial Code financing statements and notices of this Lease
and the various Lease Supplements) to ensure that the Lien on the Equipment and
the other items referenced above will be deemed to be a perfected Lien of first
priority under applicable Law and will be maintained as such throughout the
Term.
4.2 (Intentionally Omitted)
4.3 Certain Designations.
Lessee may cause the Equipment to be lettered with the names or
initials or other insignia customarily used by Lessee or any permitted
sublessees for convenience of identification of the right of any such Person to
use the Equipment.
4.4 Titled Equipment.
To the extent no Lease Default or Lease Event of Default shall have
occurred and be continuing and subject in all cases to the Collateral Agency
Agreement, Lessor hereby agrees to permit registration and titling of all Units
constituting motor vehicles subject to state titling statutes to be registered
and titled in the name of "First Security Bank, National Association, as Owner
Trustee under Coca-Cola Trust No. 97-1" or such similar name as required by the
applicable government entity issuing such registration and/or certificate of
title and to permit all such registrations to be retained by Lessee and all such
certificates of title to be retained by the Agent; provided, Lessee shall cause
all such registrations and certificates of title to specify the Agent as the
sole lienholder with respect to each Unit, as applicable.
SECTION 5. Disclaimer of Warranties.
Without waiving any claim Lessee may have against any Seller, LESSEE
ACKNOWLEDGES AND AGREES, AS BETWEEN LESSEE AND LESSOR, THAT EXECUTION OF THE
APPLICABLE LEASE SUPPLEMENT BY LESSEE SHALL WITHOUT FURTHER ACTION CONSTITUTE
THE AGREEMENT OF LESSEE AS TO ALL UNITS REFERENCED IN SUCH LEASE SUPPLEMENT THAT
LESSEE WAIVES ALL CLAIMS AGAINST LESSOR AND RELEASES LESSOR FROM ALL LIABILITY
AS TO THE FOLLOWING MATTERS: (A) EACH UNIT IS OF A SIZE, DESIGN, CAPACITY AND
MANUFACTURE SELECTED BY AND ACCEPTABLE TO LESSEE, (B) LESSEE IS SATISFIED THAT
EACH UNIT IS SUITABLE FOR ITS PURPOSES, (C) NEITHER
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LESSOR, ANY LENDER, ANY BANK LENDER, THE AGENT NOR ANY HOLDER IS A MANUFACTURER
OR A DEALER IN PROPERTY SIMILAR TO ANY UNIT, (D) EACH UNIT IS LEASED HEREUNDER
SUBJECT TO ALL APPLICABLE LAWS NOW IN EFFECT OR HEREAFTER ADOPTED AND (E) LESSOR
LEASES AND LESSEE TAKES EACH UNIT "AS-IS", "WHERE-IS" AND "WITH ALL FAULTS", IN
WHATEVER CONDITION IT MAY BE, AND LESSEE ACKNOWLEDGES THAT NEITHER LESSOR, AS
LESSOR OR IN ITS INDIVIDUAL CAPACITY, ANY LENDER, ANY BANK LENDER, THE AGENT NOR
ANY HOLDER MAKES NOR SHALL BE DEEMED TO HAVE MADE, AND EACH EXPRESSLY DISCLAIMS,
ANY AND ALL WARRANTIES OR REPRESENTATIONS EITHER EXPRESS OR IMPLIED, AS TO THE
VALUE, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, DESIGN, OPERATION,
MERCHANTABILITY THEREOF OR AS TO THE TITLE OF ANY UNIT, THE QUALITY OF THE
MATERIAL OR WORKMANSHIP THEREOF OR CONFORMITY THEREOF TO SPECIFICATIONS, FREEDOM
FROM PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, THE ABSENCE OF ANY LATENT OR
OTHER DEFECT, WHETHER OR NOT DISCOVERABLE, OR AS TO THE ABSENCE OF ANY
OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR ANY OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT THERETO, except that Lessor,
in its individual capacity, represents and warrants that as of each Acceptance
Date, Lessor shall have received whatever title to the applicable Units as was
conveyed to Lessor by the applicable Seller and the applicable Units will be
free of Lessor's Liens attributable to Lessor in its individual capacity and;
provided, that the foregoing disclaimer in clause (E) shall not extend to any
representations and warranties of any such Person contained in the Participation
Agreement. Lessor hereby appoints and constitutes Lessee its agent and
attorney-in-fact during the Term to assert and enforce, from time to time, in
the name and for the account of Lessor and Lessee, as their interests may
appear, but in all cases at the sole cost and expense of Lessee, whatever claims
and rights Lessor may have as owner of the Equipment against the manufacturers
and all prior owners thereof and Lessee hereby accepts such appointment;
provided, however, that if at any time a Lease Default or Lease Event of Default
shall have occurred and be continuing, at Lessor's option, such power of
attorney shall terminate, and Lessor may assert and enforce, at Lessee's sole
cost and expense, such claims and rights. Lessee's execution and delivery of a
Lease Supplement shall be conclusive evidence as between Lessee and Lessor that
all Units described therein are in all the foregoing respects satisfactory to
Lessee.
SECTION 6. Delivery of Equipment; Condition of Equipment; Storage.
6.1 Delivery of Equipment.
On the Basic Term Expiration Date or the date of expiration of any
applicable Renewal Term elected in accordance with Section 22 and assuming
Lessee has not purchased the Equipment for the account of Lessee in accordance
with the terms of this Lease, Lessee shall, at its sole cost and expense,
deliver possession of all the Equipment in the condition required by Section 6.2
to the applicable Third Party Purchaser at any location selected by the
applicable Third Party Purchaser. In a timely manner prior to the expiration of
the applicable Term, Lessee shall obtain from the applicable Third Party
Purchaser the designated return location with respect
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to the Equipment selected by such Third Party Purchaser. The Equipment when
delivered to the applicable Third Party Purchaser shall be in the condition
required pursuant to Section 6.2. Third Party Purchasers may act on behalf of
themselves or through designated parties for purposes of Sections 6.1 through
6.3.
6.2 Condition of Equipment.
Each Unit when delivered to the applicable Third Party Purchaser
pursuant to Section 6.1 shall be (a) in the condition specified in Sections 8.1
and 9.1, (b) capable of being immediately operated by any Person experienced in
the operation of equipment similar to the Equipment without further inspection,
repair, replacement, alteration or improvement and (c) free and clear of all
Liens except Lessor's Liens. All logs, records, books and other materials
relating to the maintenance of each Unit shall be made available to the
applicable Third Party Purchaser upon the delivery of such Unit. Prior to the
end of the Term, each potential Third Party Purchaser shall have the right to
inspect (at the sole cost and expense of such Third Party Purchaser) any Unit
that is to be delivered pursuant to Section 6.1 to ensure that such Unit is in
compliance with the conditions set forth in this Section 6.2. Such inspections
shall be during Lessee's normal business hours and upon reasonable prior notice
to Lessee; provided, upon the occurrence of any Lease Default or Lease Event of
Default, such right of inspection shall be unconditionally available to Lessor
or any Third Party Purchaser at any time and at the sole cost and expense of
Lessee. A Unit shall not be deemed to have been delivered to Lessor or any
applicable Third Party Purchaser for purposes of this Lease unless and until it
is in compliance with the conditions set forth in this Section 6.2.
6.3 Storage.
In the event of a sale of Units to a Third Party Purchaser, Lessee
shall permit each Third Party Purchaser to store its respective Units, free of
charge, at a facility of Lessee for a period (the "Initial Storage Period")
beginning on the expiration date of the applicable Term and ending not more than
60 days thereafter. During the Initial Storage Period, Lessee shall be
responsible for any storage in respect of the stored Units, and at Lessee's sole
cost and expense, Lessee shall maintain insurance in respect thereof in
accordance with Section 12. Following the expiration of the Initial Storage
Period, Lessee shall permit the applicable Third Party Purchaser, at the sole
cost and expense of such Third Party Purchaser, to store the Equipment for up to
an additional 60 days (the "Additional Storage Period", collectively with the
Initial Storage Period, the "Storage Period") at such location. During the
Storage Period, Lessee will permit the applicable Third Party Purchaser and any
representative or representatives of any prospective purchaser or user of any
Unit to inspect the same during Lessee's normal business hours; provided, that
such inspection shall be arranged at a mutually convenient time (not unduly
delayed from the time so requested) so as not to materially interfere with the
normal conduct of Lessee's business. Lessee shall not be required to store the
Equipment after the Storage Period.
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6.4 Delivery to Lessor.
Notwithstanding the other provisions of this Lease, Sections 6.1
through 6.3 shall also apply to any delivery of any Unit to Lessor (as if Lessor
were named as a Third Party Purchaser) in connection with the exercise by Lessor
of remedies pursuant to the occurrence of any Lease Event of Default and/or the
exercise by Lessor of its rights pursuant to Section 22.2(b). Lessor may act on
behalf of itself or through designated parties for purposes of Sections 6.1
through 6.3.
SECTION 7. Liens.
Lessee shall not directly or indirectly create, incur, assume, permit
or suffer to exist any Lien on or with respect to any Unit or Lessee's leasehold
interest therein under this Lease, except Permitted Liens and Lessor's Liens,
and Lessee shall promptly, at its sole cost and expense, take such action or
cause such action to be taken as may be necessary to duly discharge to the
satisfaction of Lessor (by bonding or otherwise) any such Lien not excepted
above whether now existing or arising at any time after the date of this Lease.
SECTION 8. Maintenance and Operation; Possession and Use.
8.1 Maintenance and Operation.
Lessee, at its sole cost and expense, shall maintain, repair and keep
each Unit, and shall operate each Unit in (a) good working order, repair and
operating condition and in the repair and condition as when originally delivered
to Lessee (assuming such Unit was fully equipped to operate in commercial
service at the time of such delivery), ordinary wear and tear from proper use
thereof excepted, and refurbished where necessary, (b) a manner consistent with
maintenance practices used by Lessee in respect of equipment owned or leased by
Lessee similar in type to such Unit, (c) a manner consistent with prudent
industry standards in respect of equipment similar in type to such Unit, (d)
accordance with all insurance policies required to be maintained pursuant to
Section 12, (e) compliance with applicable maintenance and repair standards and
procedures set forth in the manufacturer's manuals pertaining to such Unit and
as otherwise may be required to enforce any warranty claims respecting such Unit
and (f) compliance with all Laws applicable to such Unit and the use and
operation thereof. In no event shall Lessee discriminate as to the use or
maintenance of any Unit (including without limitation the periodicity of
maintenance or recordkeeping in respect of such Unit) as compared to equipment
of a similar nature which Lessee owns or leases. Lessee will maintain all
records, logs and other materials regarding the Equipment required by relevant
industry standard or any applicable Law, all as if Lessee were the owner of the
Equipment, regardless of whether any such requirements, by their terms, are
nominally imposed on Lessee, Lessor or any Holder.
8.2 Possession and Use.
Lessee shall be entitled to use of the Equipment only in the manner for
which the Equipment was designed and intended and so as to subject the Equipment
only to ordinary wear and tear. In no event shall Lessee make use of any
Equipment (a) in any jurisdiction not included
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in the insurance coverage required by Section 12, (b) in any manner which
invalidates any warranty coverage respecting any Equipment, (c) in any manner
which violates any Law, (d) for the storage or transport of any Hazardous
Material, other than (i) in the ordinary course of business for Lessee and (ii)
in a manner which does not give rise to any Material Adverse Effect or (e) in
any manner which results at any time in an Environmental Violation, other than
(i) in the ordinary course of business for Lessee and (ii) in a manner which
does not give rise to any Material Adverse Effect.
SECTION 9. Modifications.
9.1 Required Modifications.
In the event any Governmental Authority having jurisdiction over any
Unit requires that such Unit be altered, replaced or modified (a "Required
Modification"), Lessee agrees within 45 days of Lessee gaining knowledge of such
requirement to give Lessor and the Agent notice of such requirement and of an
election by Lessee either (a) to promptly (but in any event within the time
period by which the Required Modification is required to be made) make such
Required Modification at its sole cost and expense or (b) to deem an Event of
Loss to have occurred with respect to such Unit. Title to any Required
Modification shall immediately vest in Lessor upon completion thereof.
9.2 Optional Modifications.
In addition to making Required Modifications, Lessee at any time may
otherwise modify, alter or improve any Unit (an "Optional Modification");
provided, that no Optional Modification shall diminish the value, utility,
capacity or remaining economic useful life of such Unit below the value,
utility, capacity or remaining economic useful life of such Unit immediately
prior to such Optional Modification, assuming such Unit was then in the
condition required to be maintained by the terms of this Lease. Title to any
Optional Modification which is not readily removable without causing material
damage to a Unit shall immediately vest in Lessor, and title to any other
Optional Modification (a "Severable Modification") shall remain with Lessee.
Lessee may remove (and, at Lessor's direction, will remove) any Severable
Modification at Lessee's sole cost and expense. Lessee, at its sole cost and
expense, shall repair any damage to any Unit caused by the installation and/or
removal of any Severable Modification. If Lessee does not elect to remove such
Severable Modification, then Lessee shall return the Unit with such Severable
Modification intact, in which case such Severable Modification shall be deemed
to be a part of such Unit and title thereto shall immediately vest in Lessor
without further act or payment.
9.3 Replacement of Parts.
Lessee shall replace or cause to be replaced as promptly as
practicable, and at its sole cost and expense, all Parts of any Unit which may
from time to time become worn out, lost, stolen, destroyed, seized, confiscated,
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever except as otherwise provided herein. All replacement parts shall be
free and clear of all Liens (except Permitted Liens), shall be in good order and
operating condition and
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otherwise satisfy the requirements of Section 8.1. All such replacement parts
shall become the property of Lessor without further act or payment, shall
constitute Parts hereunder, shall immediately become subject to this Lease and
shall be deemed part of the Unit to which such Parts are attached for all
purposes hereof to the same extent as the Parts originally comprising, or
installed on, such Unit. Without further act or payment, the Parts replaced
thereby shall become Lessee's or its designee's property.
SECTION 10. Voluntary Early Termination.
10.1 Right of Termination.
To the extent no Lease Default or Lease Event of Default shall have
occurred and be continuing and, unless Lessee is terminating this Lease or
purchasing the Equipment pursuant to Section 22 on the expiration date of the
Basic Term or any Renewal Term (but only to the extent such expiration date
shall occur on an annual anniversary of the Basic Term Commencement Date),
Lessee may terminate this Lease respecting all, but not less than all, of the
Equipment in a particular Class on any Scheduled Payment Date occurring after
the first annual anniversary of the Basic Term Commencement Date (any such
Scheduled Payment Date may be referred to herein as the "Termination Date") upon
irrevocable written notice to Lessor and the Agent given at least 120 days (but
not more than 180 days) prior to the Scheduled Payment Date designated for such
early termination. Lessee may not exercise such early termination option
respecting any Unit in a particular Class unless Lessee exercises such option
respecting all Units in such Class at the same time. Lessee may exercise such
early termination option to the extent the following conditions are met: (a)
Lessee arranges for the sale of all Equipment in a particular Class to one or
more Third Party Purchasers, (b) on the Termination Date each Third Party
Purchaser pays Lessor the previously agreed purchase amount for such Equipment
in good, immediately available funds, (c) in the event that the aggregate
Proceeds of Sale are less than the aggregate Stipulated Loss Value for such
Equipment for such date, Lessee shall pay Lessor the difference between such
aggregate Proceeds of Sale and the aggregate Stipulated Loss Value for such
date, (d) on the Termination Date, Lessee shall pay all Basic Rent then due and
owing (including without limitation any interest or discount on outstanding
Commercial Paper maturing after the Termination Date) and all Supplemental Rent
then due and owing or accrued, (e) Lessee shall pay, or cause to be paid, all
Sales Expenses associated with the sale of such Equipment and (f) Lessee shall
deliver such Equipment to the applicable Third Party Purchaser in the condition
required by Section 6.2. Upon receipt of all funds then due and owing to Lessor
hereunder, (x) Lessor shall sell such Equipment to the applicable Third Party
Purchaser on an "as-is", "where-is" and "with all faults" basis without recourse
to or representation or warranty by Lessor (except as to the absence of Lessor's
Liens) and deliver a bill of sale reasonably necessary to transfer to the
applicable Third Party Purchaser all of Lessor's right, title and interest in
and to such Equipment and (y) to the extent the aggregate Proceeds of Sale
exceed the aggregate Stipulated Loss Value for such Equipment for the
Termination Date and Lessee has made all other payments required at such time
under the Operative Agreements, Lessor shall promptly remit such excess to
Lessee. Except as expressly provided in this Section 10.1, Lessee may not early
terminate this Lease; provided, to the extent (for whatever reason) this Lease
is early terminated on any date other than a Scheduled
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Payment Date, Lessee shall on such date be obligated to pay, in addition to all
other amounts then due and owing, the Break-Amount, if any, on the Notes and the
Certificates.
10.2 Bid Solicitation Process.
During the period from the date of notice given pursuant to Section
10.1 to the Termination Date (or with regard to the application of this Section
10.2 to a sale of the Equipment pursuant to Section 22.2(b), the period from the
date notice is given pursuant to Section 22.1 to the expiration date of the
Basic Term or any Renewal Term as specified in such notice), Lessee, as agent
for Lessor and at Lessee's sole cost and expense, shall use reasonable best
efforts to obtain bids from prospective Third Party Purchasers for the cash
purchase of all of the Equipment in a particular Class, and Lessee shall
promptly, and in any event at least five Business Days prior to the proposed
date of sale, certify to Lessor in writing the amount and terms of each such bid
and the name and address of the party submitting such bid. Lessor shall have the
right (but not the obligation) to obtain bids for the purchase of all such
Equipment, either directly or through agents other than Lessee, but shall be
under no duty to solicit bids, inquire into the efforts of Lessee to obtain bids
or otherwise take any action in connection with arranging such sale.
SECTION 11. Loss, Destruction, Requisition, Etc.
11.1 Event of Loss.
In the event that any Unit (a) shall suffer damage, contamination,
destruction or rendition of such Unit permanently unfit for normal use for any
reason whatsoever, (b) shall suffer an actual or constructive total loss, (c)
shall be permanently returned to the manufacturer or the Seller, (d) shall be
prohibited from being used in the normal course of interstate commerce by any
Governmental Authority, (e) shall suffer theft or disappearance, (f) shall
suffer any damage which results in an insurance settlement respecting such Unit
on the basis of a total loss, (g) shall have title thereto taken or appropriated
by any Governmental Authority under the power of eminent domain or otherwise,
(h) shall be subject to a Required Modification with respect to which Lessee has
made an election pursuant to Section 9.1(b) or (i) shall be taken,
requisitioned, condemned, confiscated or seized for use by any Governmental
Authority under the power of eminent domain or otherwise (any such occurrence
being hereinafter called an "Event of Loss"), Lessee, in accordance with the
terms of Section 11.2, shall inform Lessor and the Agent of such Event of Loss.
11.2 Replacement or Payment upon Event of Loss.
Upon the occurrence of an Event of Loss with respect to any Unit,
Lessee shall within 45 days of such occurrence give Lessor and the Agent notice
of such occurrence and of its election to perform one of the following options
and the contemplated date of performance of such option (it being agreed that if
Lessee shall not have given notice of such election within 45 days after such
occurrence or if a Lease Default or Lease Event of Default shall have occurred
and be continuing at any time from and including the date of occurrence of such
Event of Loss to and
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including the last occurring Scheduled Payment Date for such Unit within 120
days of such occurrence, Lessee shall be deemed to have elected to perform the
option set forth in the following paragraph (b)):
(a) within 120 days of such occurrence, Lessee shall comply with
Section 11.4(b) and shall convey or cause to be conveyed to Lessor a Replacement
Unit to be leased to Lessee hereunder, such Replacement Unit to be free and
clear of all Liens (other than Permitted Liens) and to have a value, utility,
capacity and remaining economic useful life at least equal to the Unit so
replaced (assuming such Unit was in the condition required to be maintained by
the terms of this Lease); provided, that if Lessee shall not perform its
obligation to effect such replacement under this paragraph (a) during the period
of time provided herein, then Lessee shall pay on the next succeeding Scheduled
Payment Date for such Unit that is at least 30 days after the end of such period
to Lessor the amounts specified in paragraph (b) below; or
(b) on a Scheduled Payment Date for such Unit within 120 days of such
occurrence, Lessee shall pay or cause to be paid (i) to Lessor (A) an amount
equal to the Stipulated Loss Value of each such Unit suffering such occurrence
determined as of such Scheduled Payment Date and (B) all Basic Rent payable on
such date and (ii) to the Persons (including without limitation Lessor) entitled
thereto all other unpaid Supplemental Rent due on or before such Scheduled
Payment Date (including without limitation any Sales Expenses arising in
connection with such termination and any interest or discount on outstanding
Commercial Paper maturing after such Scheduled Payment Date); it being
understood that until all such amounts referenced in this Section 11.2(b) are
paid in full, there shall be no abatement or reduction of Basic Rent.
11.3 Basic Rent Termination.
Upon the replacement of any Unit in compliance with Section 11.2 (a) or
upon the payment of all sums required to be paid pursuant to Section 11.2 (b) in
respect of any Unit for which Lessee has elected to pay (or is deemed to have
elected to pay pursuant to the proviso to Section 11.2(a)) the amounts specified
in Section 11.2(b), the Term with respect to such replaced or terminated Unit
and the obligation to pay Basic Rent for such replaced or terminated Unit
accruing subsequent to the date of conveyance of such Replacement Unit pursuant
to Section 11.2(a) or the date of payment of all amounts due pursuant to Section
11.2(b), as the case may be, shall terminate; provided, that Lessee shall be
obligated to pay all Rent (including without limitation any interest or discount
on outstanding Commercial Paper maturing after the date such Unit was replaced
or terminated) in respect of such replaced or terminated Unit which has accrued
up to and including the date of conveyance of such Replacement Unit pursuant to
Section 11.2 (a) or the date of payment of all amounts due pursuant to Section
11.2 (b), as the case may be; provided, further, Lessee shall be obligated to
pay Basic Rent regarding all Units remaining under the Lease (including without
limitation each Replacement Unit) and such termination of the obligation to pay
Basic Rent in respect of such replaced or terminated Unit shall not invalidate
Lessee's continuing indemnity obligation with respect thereto.
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11.4 Disposition of Equipment; Replacement of Equipment.
(a) Upon the payment of all sums required to be paid pursuant to
Section 11.2 in respect of any Unit, Lessor shall convey to Lessee or its
designee all right, title and interest of Lessor in and to such Unit, "as-is",
"where-is" and "with all faults", without recourse to or representation or
warranty by Lessor, except for a warranty against Lessor's Liens, and shall
execute and deliver to Lessee or its designee bills of sale to evidence such
conveyance. As to each separate Unit so disposed of, Lessee or its designee
shall be entitled to any amounts arising from such disposition, plus any awards,
insurance or other proceeds and damages received by Lessee, Lessor or the Agent
by reason of such Event of Loss after having paid the Stipulated Loss Value
attributable thereto and all other amounts of Rent then due and payable in
respect thereof, provided, that if a Lease Default or Lease Event of Default
shall have occurred and be continuing, the amounts referred to in this sentence
which are payable to Lessee shall be paid to Lessor, and Lessor shall hold such
amounts received as security for Lessee's obligations hereunder subject to the
provisions of Section 11.6.
(b) At the time of or prior to any replacement of any Unit, Lessee, at
its sole cost and expense, shall (i) cause good and marketable legal title with
respect to the Replacement Unit to be conveyed to Lessor, free and clear of all
Liens, (ii) cause a Lease Supplement substantially in the form of Exhibit A
hereto, subjecting such Replacement Unit to this Lease, and duly executed by
Lessee, to be delivered to Lessor for execution and (iii) cause all filings,
recordings and other actions (reasonably requested by Lessor) to be taken or
made, to the extent such filings, recordings or other actions are necessary or
appropriate to perfect and protect Lessor's interest in the Replacement Unit and
(iv) furnish such other documents and evidence as Lessor or the Agent, or their
respective counsel, may reasonably request in order to establish the
consummation of the transactions contemplated by this Section 11.4. For all
purposes hereof, upon passage of title thereto to Lessor the Replacement Unit
shall be deemed part of the property leased hereunder and the Replacement Unit
shall be deemed a "Unit" as defined herein with the same Equipment Cost as the
Unit replaced thereby. Upon such passage of title, Lessor shall transfer to
Lessee on an "as-is", "where-is" and "with all faults" basis, without recourse
to or representation or warranty by Lessor (except as to the absence of Lessor's
Liens), all Lessor's right, title and interest in and to the replaced Unit.
11.5 (Intentionally Omitted)
11.6 Reservation of Amounts Regarding Lease Default or Lease Event
of Default.
Any amount referred to in Sections 11.4(a) or 12 which is to be held by
Lessor subject to the provisions of this Section 11.6 shall be held by Lessor as
security for the obligations of Lessee under this Lease and at such time as
there shall not be continuing any such Lease Default or Lease Event of Default,
such amount (unless theretofore otherwise applied to the obligations of Lessee
hereunder) shall be paid over to Lessee.
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SECTION 12. Insurance.
Lessee, at its own cost and expense, shall insure the Equipment against
all risks for the value of the Equipment and in no event for less than the
Stipulated Loss Value of the Equipment. Notwithstanding the foregoing, if no
Lease Event of Default shall have occurred and be continuing, Lessee may
self-insure with respect to the insurance required in the preceding sentence.
Lessee shall maintain comprehensive general public liability insurance and
automobile liability insurance, each against such risks in amounts not less than
$5,000,000 combined single limit. All such insurance shall be in such form as
the Additionally Insured Parties shall approve, shall be with financially sound
and reputable independent insurers, shall specify Lessor and the Agent, as their
respective interests may appear, as loss payees with respect to property damage
insurance and the Additionally Insured Parties, as their respective interests
may appear, as additional insureds with respect to liability insurance. Any
insurance policy maintained by Lessee pursuant to this Section 12 shall provide
that such insurance may not be cancelled as to the Additionally Insured Parties
or altered in any way that would affect the interests of the Additionally
Insured Parties without at least 30 days prior written notice to the
Additionally Insured Parties. All insurance shall be primary, without right of
contribution from any other insurance carried by the Additionally Insured
Parties, shall contain a "breach of warranty" provision satisfactory to the
Additionally Insured Parties and shall waive any right of subrogation of the
insurers against the Additionally Insured Parties. Lessee shall provide the
Additionally Insured Parties (as reasonably requested by the Additionally
Insured Parties) with evidence satisfactory to them of the required insurance at
all times during the Term and, if applicable, during the Initial Storage Period.
SECTION 13. Lessor's Inspection Rights.
Lessor shall have the right, but not the obligation, at its sole cost
and expense, by its authorized representatives, to inspect the Equipment and
Lessee's records with respect thereto during Lessee's normal business hours and
upon reasonable prior notice to Lessee; provided, upon the occurrence of any
Lease Default or Lease Event of Default such right of inspection shall be
unconditionally available to Lessor and/or any potential Third Party Purchaser
at any time and at the sole cost and expense of Lessee.
SECTION 14. Events of Default.
Each of the following events shall constitute a "Lease Event of
Default" hereunder (whether any such event shall be voluntary or involuntary or
come about or be effected by operation of Law or pursuant to or in compliance
with any judgment, decree, action or order of any court or any order, rule or
regulation of any Governmental Authority):
(a) Lessee shall fail to make any payment of Basic Rent or Stipulated
Loss Value within five Business Days after the date due, whether at stated
maturity, by acceleration or otherwise; or
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(b) Lessee shall fail to make any payment of Supplemental Rent,
including without limitation indemnity payments (but excluding payments of
Stipulated Loss Value, which shall be subject to clause (a) above) after the
same shall have become due and such failure shall continue unremedied for five
Business Days after receipt by Lessee of written notice of such failure; or
(c) (Intentionally Omitted)
(d) Any representation or warranty made by Lessee in any Operative
Agreement or in any certificate or financial statement furnished pursuant to the
provisions thereof shall prove to have been false or misleading in any material
respect as of the time made or furnished; or
(e) To the extent the Credit Agreement is terminated or expires, Lessee
shall default in the performance or observance of any covenant referenced in
Section 5.2 of the Participation Agreement and such default shall not be
remedied for a period of five Business Days after notice thereof to Lessee from
Lessor or any other Person; or
(f) (Intentionally Omitted)
(g) (Intentionally Omitted)
(h) The Coca-Cola Company and any of its wholly-owned Subsidiaries
shall fail for a period of 90 days to own at least 20% of the capital stock of
Lessee, or such lesser percentage as shall result solely from the issuance after
the date hereof by Lessee for fair consideration of capital stock to any other
Person;
(i) A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
Lessee or any Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar Law now or hereafter in effect, or for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of Lessee or any Subsidiary or for any
substantial part of its property, or for the winding-up or liquidation of its
affairs and such proceeding shall remain undismissed or unstayed and in effect
for a period of 60 days or such court shall enter a decree or order granting the
relief sought in such proceeding;
(j) Lessee or any Subsidiary shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar Law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such Law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of Lessee or any Subsidiary or for any substantial part of its
property, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action in furtherance of any of the foregoing;
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(k) Lessee shall fail to observe and perform any of the covenants or
agreements of Lessee set forth in Sections 10, 12, 19 or 22 (including without
limitation the payment of all amounts under Section 22 on the due date
therefor); or
(l) Lessee shall fail to observe or perform any covenants or agreements
(other than as referenced in Section 14(k) and also other than with respect to
the Incorporated Covenants) to be observed or performed by Lessee under any
Operative Agreement and such failure shall continue unremedied for 30 days after
notice to Lessee from Lessor, any Holder, any Lender, any Bank Lender and/or the
Agent specifying the failure and demanding the same to be remedied; or
(m) a Credit Agreement Event of Default shall have occurred and be
continuing and the lenders under the Credit Agreement or the agent for such
lenders shall have commenced the exercise of remedies with respect to such
Credit Agreement Event of Default; or
(n) the Agent shall fail at any time to have a perfected, first
priority Lien on the Collateral.
SECTION 15. Remedies.
15.1 Remedies.
Upon and after the occurrence of any Lease Event of Default, Lessor may
exercise one or more of the following remedies as Lessor in its sole discretion
shall elect (provided, once the exercise of remedies is commenced, Lessee may
not cure any Lease Event of Default unless such cure is acceptable to Lessor in
its sole discretion):
(a) proceed by appropriate court action or actions, either at Law or in
equity, to enforce performance by Lessee of the applicable covenants of this
Lease or to recover damages for the breach thereof;
(b) Lessor may demand that Lessee, and Lessee shall, upon demand of
Lessor and at Lessee's sole cost and expense, forthwith return any or all of the
Equipment to Lessor or its order in the manner and condition required by, and
otherwise in accordance with all of the provisions of, Sections 6.1, 6.2 and
15.4; or Lessor may, at its option, enter upon the premises of Lessee or other
premises where any of the Equipment may be located and take possession of and
remove any or all of the Equipment and thenceforth hold, use, operate, sublease,
possess and enjoy the same free from any right of Lessee or its sublessees and
successors or assigns, to use such Equipment for any purpose whatever and
without any duty to account to Lessee with respect to the proceeds thereof all
without liability to Lessor for such entry or taking possession;
(c) with or without taking possession, sell any or all of the Equipment
at public or private sale, as Lessor may determine, with not less than five days
prior notice to Lessee but free and clear of any rights of Lessee and without
any duty to account to Lessee with respect to such sale or for the proceeds
thereof (except to the extent required by Section 15.1(e)), in which event
Lessee's obligation to pay Basic Rent with respect to such Equipment hereunder
due for any
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periods subsequent to the date of such sale shall terminate (except to the
extent that Basic Rent is to be included in computations under Sections 15.1(d)
or (e) if Lessor elects to exercise its rights under either of said Sections);
(d) whether or not Lessor shall have exercised, or shall thereafter at
any time exercise, any of its rights under Sections 15.1(a), (b) or (c) with
respect to any or all of the Equipment, Lessor, by written notice to Lessee
specifying a payment date not earlier than 30 days after such notice, may demand
that Lessee pay to Lessor, and Lessee shall pay to Lessor, on the payment date
specified in such notice, as liquidated damages for loss of a bargain and not as
a penalty (in lieu of the Basic Rent for such Equipment due after the payment
date specified in such notice), all Rent due and payable or accrued for such
Equipment as of the payment date specified in such notice plus an amount equal
to the excess, if any, of the Stipulated Loss Value for such Equipment computed
as of the Scheduled Payment Date next preceding the payment date specified in
such notice (or if such payment date occurs on a Scheduled Payment Date, then
computed as of such Scheduled Payment Date) over the Fair Market Sales Value (as
determined pursuant to Section 15.5) of such Equipment as of the payment date
specified in such notice;
(e) if Lessor shall have sold any or all of the Equipment pursuant to
Section 15.1(c), Lessor, by written notice to Lessee specifying a payment date
not earlier than 30 days after such notice, may demand that Lessee pay to
Lessor, and Lessee shall pay to Lessor, as liquidated damages for loss of a
bargain and not as a penalty (in lieu of the Basic Rent for such Equipment due
after the payment date specified in such notice) all Rent and all Sales Expenses
due and payable or accrued for such Equipment as of the payment date specified
in such notice plus the amount, if any, by which the Stipulated Loss Value of
such Equipment computed as of the Scheduled Payment Date next preceding the date
of such sale (or if such sale occurs on a Scheduled Payment Date, then computed
as of such Scheduled Payment Date) exceeds the proceeds of such sale;
(f) in lieu of exercising its rights pursuant to Sections 15.1(d) or
(e) with respect to any or all of the Equipment and provided such Lease Event of
Default has not been cured within the time period expressly set forth therefor
in this Lease or waived, Lessor by written notice to Lessee specifying a payment
date not earlier than five Business Days after such notice, may accelerate
(provided such acceleration shall be deemed to occur automatically without
further notice upon the occurrence of a Lease Event of Default as specified in
Sections 14(i) or (j) and in such event the payment date referenced herein shall
be deemed to be the date such Lease Event of Default occurs) the obligations of
Lessee owed under the Lease and may demand that Lessee pay to Lessor (whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Lessee),
and Lessee shall pay Lessor, on the payment date specified in such notice (in
lieu of the Basic Rent for such Equipment due after the payment date specified
in such notice) the sum of (i) all Rent due and payable or accrued for such
Equipment as of the payment date specified in such notice plus (ii) an amount
equal to the Stipulated Loss Value for such Equipment computed as of the
Scheduled Payment Date next preceding the payment date specified in such notice
(or if such payment date occurs on a Scheduled Payment Date, then computed as of
such Scheduled Payment Date); and upon payment by Lessee of all such damage
amounts referenced in this
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Section 15.1(f) and all Sales Expenses and other costs and expenses of transfer
otherwise payable by Lessor, Lessor will transfer to Lessee, without recourse to
or representation or warranty by Lessor (except as to the absence of Lessor's
Liens), all Lessor's right, title and interest in and to such Equipment; and/or
(g) Lessor may rescind or terminate this Lease or may exercise any
other right or remedy that may be available to it under applicable Law.
In addition, Lessee shall be liable, except as otherwise provided above, for any
and all unpaid Supplemental Rent due hereunder before or during the exercise of
any of the foregoing remedies, and for reasonable legal fees and other costs and
expenses incurred by reason of the occurrence of any Lease Event of Default or
the exercise of Lessor's remedies with respect thereto, including without
limitation the repayment in full of any costs and expenses necessary to be
expended in repairing any Unit in order to cause it to be in compliance with all
maintenance standards imposed by this Lease and all Laws and all other costs and
expenses, including without limitation reasonable legal fees, involved in any
appearance by Lessor, any Holder, any Lender, any Bank Lender or the Agent in
any bankruptcy or insolvency proceeding with respect to Lessee.
LESSEE HEREBY ACKNOWLEDGES AND AGREES THAT FROM TIME TO TIME AND AT
DIFFERENT TIMES LESSOR (ON BEHALF OF THE HOLDERS AND ACTING PURSUANT TO THE
DIRECTION OF THE MAJORITY HOLDERS) AND THE AGENT (ON BEHALF OF THE LENDERS, AND
THE BANK LENDERS AND ACTING PURSUANT TO THE DIRECTION OF THE MAJORITY IN
INTEREST) MAY EACH ON A SEVERAL BASIS (X) DECLARE THE OCCURRENCE OF A LEASE
EVENT OF DEFAULT AND (Y) EXERCISE REMEDIES UNDER THIS LEASE WITH REGARD TO THEIR
RESPECTIVE RIGHT, TITLE AND INTEREST RESPECTING THE EQUIPMENT AND/OR IN THIS
LEASE ARISING PURSUANT TO THE OPERATIVE AGREEMENTS OR OTHERWISE, WHICH IN THE
CASE OF LESSOR SHALL INCLUDE ALL EXCEPTED PROPERTY AND THE EQUIPMENT AND IN THE
CASE OF THE AGENT SHALL INCLUDE ALL COLLATERAL. THE DECLARATION OF A LEASE EVENT
OF DEFAULT AND THE COMMENCEMENT OF THE EXERCISE OF REMEDIES WITH RESPECT THERETO
BY ANY PERSON ENTITLED TO DO THE SAME SHALL AUTOMATICALLY AND WITHOUT FURTHER
ACTION CONSTITUTE AN ACCELERATION OF ALL OBLIGATIONS OF LESSEE UNDER THIS LEASE
AND THE OTHER OPERATIVE AGREEMENTS. LESSEE WAIVES ANY AND ALL DEFENSES TO
PAYMENT.
15.2 Cumulative Remedies.
The remedies in this Lease provided in favor of Lessor shall not be
deemed exclusive but shall be cumulative and shall be in addition to all other
remedies in its favor existing at Law or in equity. Lessee hereby waives any
mandatory requirements of Law, now or hereafter in effect, which might limit or
modify any of the remedies herein provided, to the extent that such waiver is
permitted by Law.
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15.3 No Waiver.
No delay or omission to exercise any right, power or remedy accruing to
Lessor upon any breach or default by Lessee under this Lease shall impair any
such right, power or remedy of Lessor, nor shall any such delay or omission be
construed as a waiver of any breach or default, or of any similar breach or
default hereafter occurring; nor shall any waiver of a single breach or default
be deemed a waiver of any subsequent breach or default.
15.4 Lessee's Duty to Return Equipment Upon a Lease Event of Default.
If Lessor or any assignee of Lessor shall terminate this Lease pursuant
to this Section 15, unless Lessee shall purchase the Equipment pursuant to this
Section 15, Lessee shall forthwith deliver possession of the Equipment to Lessor
or its designees pursuant to Sections 6.1 through 6.3 as if Lessor were a "Third
Party Purchaser" under such Sections.
15.5 Fair Market Sales Value.
For purposes of this Lease, the "Fair Market Sales Value" of a Unit
shall be the sales value that would be obtained in an arm's length transaction
between an informed and willing buyer under no compulsion to buy and an informed
and willing seller under no compulsion to sell, based upon the actual condition
and location of the Unit in question, which value shall be determined by an
appraiser selected by Lessor and reasonably acceptable to Lessee.
SECTION 16. Further Assurances; Expenses.
16.1 Further Assurances.
Lessee will duly execute and deliver to Lessor, the Holders,
the Lenders, the Bank Lenders and the Agent such further documents and
assurances and take such further action as may be required by applicable Law in
order to effectively establish and protect the rights and remedies created in
favor of Lessor, the Holders, the Lenders, the Bank Lenders and the Agent
hereunder and under the Operative Agreements, including without limitation the
execution and delivery of supplements or amendments hereto and to the Operative
Agreements, in recordable form, subjecting to this Lease any Replacement Unit
and the recording or filing of counterparts hereof or thereof in accordance with
the Laws of such jurisdictions and such Uniform Commercial Code financing
statements and other filings as are required to maintain the right, title and
interest of Lessor in and to the Equipment and the remainder of the Trust Estate
and to maintain the validity and perfection of the Lien of the Loan Agreement on
the Collateral or as Lessor or the Agent may from time to time deem reasonably
advisable; provided, that in connection with the foregoing Lessee shall also
take such further action as is reasonably requested by Lessor or the Agent. The
documents required by this Section 16.1 shall be in form and substance
reasonably acceptable to Lessee.
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16.2 Expenses.
Lessee will pay all reasonable costs, charges and expenses (including
without limitation reasonable attorneys fees and expenses) incident to any
filing, refiling, recording and rerecording or depositing and redepositing of
any instruments, Uniform Commercial Code filings or incident to the taking of
action in accordance with Section 16.1.
SECTION 17. Lessor's Right to Perform.
If Lessee fails to make any payment required to be made by it hereunder
or fails to perform or comply with any of its other agreements contained herein
which requires the payment of money, Lessor may itself make such payment or
perform or comply with such agreement which requires the payment of money, after
giving prior written notice thereof to Lessee, but Lessor shall not be obligated
hereunder to do so, and the amount of such payment, together with interest
thereon at the Late Rate, to the extent permitted by applicable Law, shall be
deemed to be Supplemental Rent, payable by Lessee to Lessor on demand.
Notwithstanding the foregoing, Lessor may not make more than two such
consecutive payments of Basic Rent and no more than six such payments of Basic
Rent in the aggregate during the Term.
SECTION 18. Assignment.
18.1 Assignment by Lessor.
Lessee and Lessor hereby confirm that concurrently with the execution
and delivery of this Lease, Lessor has executed and delivered to the Agent the
Loan Agreement, which is intended to assign as collateral security and grant a
Lien in favor of the Agent in, to and under (among other things) the Equipment,
this Lease and the Rent payable hereunder (excluding Excepted Property), all as
more explicitly set forth in the Loan Agreement. Lessor agrees that it shall not
otherwise assign or convey its right, title and interest in and to the
Equipment, this Lease and the Rent payable hereunder (excluding the Excepted
Property) or any other part of the Collateral, except (a) as expressly permitted
by and subject to the provisions of the Participation Agreement, the Trust
Agreement and the Loan Agreement or (b) following the discharge of the Lien of
the Loan Agreement in accordance with its terms.
Lessee hereby consents to such assignment and to the creation of such
Lien and consents to the terms and provisions thereof. Lessee (x) acknowledges
that the Loan Agreement provides for the exercise by the Agent of all rights of
Lessor hereunder to give any consents, approvals, waivers, notices or the like,
to make any elections, demands or the like (excluding with regard to the
Excepted Property, the Equipment and as otherwise provided in the Loan
Agreement), (y) acknowledges receipt of an executed counterpart of the Loan
Agreement as in effect on the date hereof and consents to all of the provisions
thereof and (z) agrees that, to the extent provided in the Loan Agreement, the
Agent shall have all the rights of Lessor hereunder (excluding such rights
relating to any Excepted Property, the Equipment and as otherwise provided in
the Loan Agreement) as if the Agent had originally been named as Lessor herein,
to the extent provided in the Loan Agreement. Notwithstanding any provision of
this Lease or any other Operative
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Agreement but without prejudice to Lessor's and the Holders' rights expressly
provided for in the Loan Agreement, so long as Lessor's interest in the
Equipment, this Lease and the Rent payable hereunder (excluding the Excepted
Property) is subject to the Lien of the Loan Agreement, Lessee shall make all
payments of Rent (excluding Segregated Excepted Property but including all other
Excepted Property) to the Agent to such account as the Agent may specify to
Lessee from time to time for distribution in accordance with the terms of the
Operative Agreements, and the obligation of Lessee to make all such payments
shall not be subject to any defense, counterclaim, setoff or other right or
claim of any kind which Lessee may be able to assert against Lessor, any Holder,
the Lenders, the Bank Lenders or the Agent in any action regarding this Lease or
otherwise.
18.2 ASSIGNMENT BY LESSEE.
LESSEE WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR AND THE
AGENT, ASSIGN ANY OF ITS RIGHT, TITLE OR INTEREST HEREUNDER; PROVIDED, ANY
SUBLEASE WHICH SATISFIES SECTION 21 SHALL NOT BE CONSTRUED AS AN ASSIGNMENT OF
LESSEE'S RIGHT, TITLE AND INTEREST HEREUNDER.
SECTION 19. Net Lease, Etc.
This Lease is a net lease and Lessee's obligation to pay all Rent
payable hereunder shall be absolute, unconditional and irrevocable and shall not
be affected by any circumstance of any character including without limitation
(a) any set-off, abatement, counterclaim, suspension, recoupment, reduction,
rescission, defense or other right that Lessee may have against Lessor, any
Holder, any Lender, any Bank Lender, the Agent, any Seller, any manufacturer of
any Unit, or any other Person for any reason whatsoever, (b) any defect in or
failure of title, merchantability, condition, design, compliance with
specifications, operation or fitness for use of all or any part of any Unit, or
any interruption or cessation in or prohibition of the use or possession of any
Unit for any reason whatsoever, (c) any damage to, or removal, abandonment,
requisition, taking, condemnation, loss, theft or destruction of all or any part
of any Unit or any interference, interruption, restriction, curtailment or
cessation in the use or possession of any Unit by Lessee or any other Person for
any reason whatsoever or of whatever duration, (d) any insolvency, bankruptcy,
reorganization or similar proceeding by or against Lessee, Lessor or any other
Person, (e) the invalidity, illegality or unenforceability of this Lease, any
other Operative Agreement, or any other instrument referred to herein or therein
or any other infirmity herein or therein or any lack of right, power or
authority of Lessee to enter into this Lease or any other Operative Agreement to
which it is a party or to perform the obligations hereunder or thereunder or
consummate the transactions contemplated hereby or thereby or any doctrine of
force majeure, impossibility, frustration or failure of consideration, or (f)
any other circumstance or happening whatsoever, foreseeable or unforeseeable,
whether or not similar to any of the foregoing. To the extent permitted by
applicable Law, Lessee hereby waives any and all rights which it may now have or
which at any time thereafter may be conferred upon it, by Law or otherwise, to
terminate, cancel, quit or surrender this Lease with respect to any Unit, except
in accordance with the express terms hereof. Each payment of Rent made by Lessee
hereunder shall be final and Lessee
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shall not seek or have any right to recover all or any part of such payment from
Lessor or any other Person for any reason whatsoever. If for any reason
whatsoever this Lease shall be terminated by operation of Law or otherwise
except as expressly provided herein, (x) Lessee shall nonetheless pay an amount
equal to each Rent payment at the time and in the manner that such payment would
become due and payable hereunder if this Lease had not been terminated or (y) at
the option of Lessor, Lessee shall pay upon the next occurring Scheduled Payment
Date, all Basic Rent, Supplemental Rent (including without limitation all
Break-Amount, if any, on the Notes and the Certificates) and any and all other
amounts then due and owing or accrued under any Operative Agreement. In the
event Lessor elects the option set forth in subsection (y) of the preceding
sentence, Lessor shall convey the Equipment to Lessee (or its designee) on an
"as-is", "where-is" and "with all faults" basis, without recourse to or
representation or warranty by Lessor except as to the absence of Lessor's Liens
and Lessee shall pay all Sales Expenses.
SECTION 20. Notices.
Unless otherwise specifically provided herein, all notices required or
permitted by the terms hereof shall be given in the manner provided in Section
10.3 of the Participation Agreement. All notices delivered to Lessor shall also
be delivered to the Agent.
SECTION 21. Sublease.
Without the prior written consent of Lessor, Lessee may sublease any
Unit to any wholly-owned Subsidiary of Lessee (including without limitation
downstream Subsidiaries) or to Piedmont Coca-Cola Bottling Partnership;
provided, (a) no Lease Default or Lease Event of Default has occurred and be
continuing at such time and (b) such sublease is a Permitted Sublease. Except as
otherwise expressly set forth in the immediately preceding sentence, Lessee will
not, without the prior written consent of Lessor (which shall be given or
withheld in Lessor's reasonable discretion), assign, sublease (provided, unless
expressly stated otherwise by Lessor at such time, each such sublease must be a
Permitted Sublease) or otherwise transfer its rights or obligations with respect
to this Lease, any other Operative Agreement or any of the Equipment and any
attempted assignment, sublease or other transfer by Lessee without such Lessor
consent shall be null and void.
Any sublease referenced in this Lease shall only be deemed a "Permitted
Sublease" if at the time Lessee enters into such sublease, all of the following
conditions shall have been satisfied: (a) no such sublease by Lessee will (i)
adversely affect the insurance coverage provided under Section 12, (ii) reduce
any of the obligations of Lessee hereunder or under any Operative Agreement or
(iii) adversely affect the rights of Lessor hereunder, (b) all obligations of
Lessee hereunder shall be and remain primary and shall continue in full force
and effect as the obligations of a principal and not of a guarantor or surety,
(c) each such sublease, and the rights and interests of any sublessee thereunder
shall in all events be expressly subject and subordinate to this Lease, the
rights and interests of Lessor, the Holders, the Lenders, the Bank Lenders and
the Agent (in each case under the Operative Agreements), (d) such sublease shall
not include any term or provision which would require or permit the sublessee
thereunder to take any actions inconsistent with this Lease or the other
Operative Agreements, (e) the term of any such sublease shall in no event
22
<PAGE>
exceed the then remaining portion of the Term and (f) no Lease Default or Lease
Event of Default shall have occurred and be continuing. Lessee hereby grants a
Lien to Lessor respecting all right, title and interest of Lessee, now or
hereafter arising, in the above-referenced subleases and in connection therewith
if Lessor hereafter requests, Lessee will take all actions necessary to perfect
and maintain a first priority Lien in favor of Lessor respecting such subleases.
Lessee shall make, or cause to be made, in a timely fashion all
reasonable filings with respect to any such Permitted Sublease necessary to
protect the rights of Lessor in the Unit subject to such Permitted Sublease.
SECTION 22. End of Term Purchase, Sale and Renewal Options.
22.1 Election of End of Term Options.
To the extent no Lease Default or Lease Event of Default shall have
occurred and be continuing and if this Lease shall not have been earlier
terminated, Lessee shall give an irrevocable written notice to the Agent (and
promptly thereafter, the Agent shall provide such notice to Lessor, the Holders,
the Lenders and the Bank Lenders), respecting all, but not less than all, the
Equipment in a particular Class at least 120 days (but not more than 180 days)
prior to the expiration date of the Basic Term or any Renewal Term, as
applicable (but only to the extent such expiration date shall occur on an annual
anniversary of the Basic Term Commencement Date), and pursuant to such notice,
Lessee shall elect one of the options described in Sections 22.2(a) or (b) or
22.3; provided, the option described in Section 22.3 shall not be available to
Lessee unless the conditions for renewal set forth in Section 22.3 have been
satisfied; provided, further, to the extent Lessee does not give any such notice
at least 120 days (but not more than 180 days) prior to the expiration of the
Basic Term (in the case of Class A Equipment) and the Basic Term or the first
Renewal Term, as applicable, (in the case of Class B Equipment and Class C
Equipment) Lessee without further action shall be deemed to have exercised its
renewal option pursuant to Section 22.3; provided, further, Lessee may not elect
the renewal option pursuant to Section 22.3 at the Final Renewal Term Expiration
Date and to the extent Lessee does not give any such notice at least 120 days
(but not more than 180 days) prior to the Final Renewal Term Expiration Date,
Lessee without further action shall be deemed to have exercised its purchase
option pursuant to Section 22.2(a). Lessee may not exercise any such end of term
purchase or sale option respecting any Unit in a particular Class unless Lessee
exercises such option respecting all Units in such Class at the same time.
22.2 Purchase by Lessee; Purchase by Third Party Purchasers.
(a) To the extent Lessee elects this option, then on the expiration
date of the Basic Term or any Renewal Term, as applicable (but only to the
extent such expiration date shall occur on an annual anniversary of the Basic
Term Commencement Date), as elected (or deemed elected) by Lessee pursuant to
Section 22.1, Lessee shall purchase all, but not less than all, of the Equipment
in a particular Class for an amount equal to the aggregate Stipulated Loss Value
of such Equipment. At such time, Lessee shall also pay all Basic Rent, all
Supplemental Rent (including without limitation all Break-Amount and any
interest or discount on outstanding
23
<PAGE>
Commercial Paper maturing after such date, if any, on the Notes and the
Certificates) then due and owing or accrued and all Sales Expenses. Upon receipt
of all funds then due and owing to Lessor hereunder, Lessor shall sell to Lessee
all of Lessor's right, title and interest in and to such Equipment on an
"as-is", "where-is" and "with all faults" basis without recourse to or
representation or warranty by Lessor, except as to the absence of Lessor's
Liens, and deliver a bill of sale to Lessee to transfer the same. If Lessee has
exercised its purchase option, but has not on or prior to the expiration date of
the Basic Term or any Renewal Term, as applicable, paid all amounts for which it
is obligated under this Section 22.2(a), then Lessor in its sole discretion may
elect to refuse to sell such Equipment to Lessee.
(b) To the extent Lessee elects this option, then Lessee shall solicit
bona fide bids for the Equipment in a particular Class from prospective Third
Party Purchasers in accordance with the provisions of Section 10.2, and one or
more Third Party Purchasers shall purchase all, but not less than all, of the
Equipment in a particular Class. If purchase amounts are received from one or
more Third Party Purchasers in an aggregate amount in excess of the aggregate
Maximum Lessor Risk Amount for such Equipment, or if Lessor agrees in its sole
discretion to accept such purchase amounts which are less than the Maximum
Lessor Risk Amount for such Equipment, then on the expiration date of the Basic
Term or any Renewal Term, as applicable, (i) Lessor shall sell to the highest
bidding Third Party Purchasers all of Lessor's right, title and interest in and
to such Equipment on an "as-is", "where-is" and "with all faults" basis, without
recourse to or representation or warranty by Lessor except as to the absence of
Lessor's Liens, (ii) such bidders shall pay Lessor the bid amount solely for the
account of Lessor, (iii) Lessee shall pay, or cause to be paid, all Basic Rent
and Supplemental Rent (including without limitation all Break-Amount and any
interest or discount on outstanding Commercial Paper maturing after such
expiration date, if any, on the Notes and the Certificates) then due and owing
and all Sales Expenses and (iv) Lessor shall promptly deliver a bill of sale to
the applicable Third Party Purchaser transferring all of Lessor's right, title
and interest in and to such Equipment consistent with Section 22.2(b)(i). If
Lessor (x) does not receive any bid or bids in excess of the aggregate Maximum
Lessor Risk Amount for such Equipment from bona fide prospective Third Party
Purchasers and does not accept bids received for less than the aggregate Maximum
Lessor Risk Amount for such Equipment, or (y) does not receive all bid amounts
from the Third Party Purchasers on or prior to the expiration date of the Basic
Term or any Renewal Term, as the case may be, then on such applicable expiration
date, Lessee shall pay Lessor the aggregate Maximum Lessee Risk Amount for such
Equipment and all amounts referenced in Section 22.2(b)(iii), Lessee shall
transfer all its rights in such Equipment to Lessor, Lessee shall deliver such
Equipment to Lessor pursuant to Section 6.1 through 6.4 and Lessor shall retain
title to such Equipment.
(c) If the aggregate Proceeds of Sale are more than the aggregate
Stipulated Loss Value for the Equipment in a particular Class, Lessor shall on
the expiration date of the Basic Term or any Renewal Term, as the case may be,
pay to Lessee an amount equal to such excess as an adjustment to the Rent
payable under this Lease, provided, that Lessor shall have the right to offset
against such adjustment payable by Lessor any amounts then due and payable from
Lessee to Lessor hereunder. If the aggregate Proceeds of Sale regarding any sale
of the Equipment in a particular Class under Section 22.2(b) are less than the
aggregate Stipulated Loss Value for the Equipment in such Class, Lessee shall on
the expiration date of the Basic Term or Renewal Term,
24
<PAGE>
as the case may be, pay to Lessor an amount equal to such deficiency as an
adjustment to the Rent payable under this Lease, but in no event shall the
amount Lessee is required to pay Lessor with respect to such deficiency exceed
the aggregate Maximum Lessee Risk Amount for the Equipment in such Class.
22.3 Renewal Option.
So long as (a) renewal for such Renewal Term shall not be prohibited by
any Law and (b) no Lease Default or Lease Event of Default shall have occurred
and be continuing on the day preceding the first day of any such Renewal Term,
Lessee may at its option renew this Lease for all, but not less than all, the
Equipment in a particular Class for not more than one Renewal Term for the Class
A Equipment, not more than three Renewal Terms for the Class B Equipment and not
more than five Renewal Terms for the Class C Equipment, each Renewal Term shall
be of one year's duration. Notwithstanding the foregoing, the C Class Equipment
may not be renewed for more than three Renewal Terms unless the Bank Lenders
have extended the Bank Commitment Expiration Date for an additional period at
least as long as such additional Renewal Term or Renewal Terms, as the case may
be. Such option to renew may be exercised by Lessee in accordance with the
provision of Section 22.1. All terms and provisions of this Lease shall be
applicable during each Renewal Term.
SECTION 23. Limitation of Lessor's Liability.
It is expressly agreed and understood that all representations,
warranties and undertakings of Lessor hereunder (except as expressly provided
herein) shall be binding upon Lessor only in its capacity as Owner Trustee under
the Trust Agreement and in no case shall First Security be personally liable for
or on account of, any statements, representations, warranties, covenants or
obligations stated to be those of Lessor hereunder, except that Lessor (or any
successor Owner Trustee) shall be personally liable for its gross negligence or
willful misconduct and for its breach of its covenants, representations and
warranties contained herein or in any other Operative Agreement to the extent
covenanted or made in its individual capacity.
SECTION 24. Miscellaneous.
24.1 Governing Law; Waiver of Jury Trial; Severability.
THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NORTH CAROLINA; PROVIDED, THAT THE
PARTIES SHALL BE ENTITLED TO ALL RIGHTS CONFERRED BY ANY APPLICABLE FEDERAL LAW.
LESSEE AND LESSOR HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT
THEY MAY EFFECTIVELY DO SO THE RIGHT TO A TRIAL BY JURY.
Whenever possible, each provision of this Lease shall be interpreted in
such manner as to be effective and valid under applicable Law, but if any
provision of this Lease shall be prohibited
25
<PAGE>
by or invalid under the Laws of any jurisdiction, such provision, as to such
jurisdiction, shall be, to the extent permitted by Law, ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Lease in any other
jurisdiction.
24.2 Execution in Counterparts.
This Lease may be executed in any number of counterparts, each executed
counterpart constituting an original and in each case such counterparts shall
constitute but one and the same instrument; provided, that to the extent this
Lease constitutes chattel paper (as such term is defined in the Uniform
Commercial Code) no Lien on this Lease may be created through the transfer or
possession of any counterpart hereof other than the counterpart bearing the
receipt therefor executed by the Agent on the signature page hereof, which
counterpart shall constitute the only "original" hereof for purposes of the
Uniform Commercial Code.
24.3 Personal Property Taxes.
Lessor and Lessee hereby agree that to the extent permitted by Law
during the Term (a) Lessee will prepare and file all returns and other
appropriate documentation in regard to personal property taxes on the Equipment,
(b) pay all such personal property taxes and (c) reimburse Lessor for any and
all such personal property taxes and out-of-pocket costs and expenses in
connection therewith previously paid by Lessor with regard to the Term.
24.4 Amendments and Waivers.
No term, covenant, agreement or condition of this Lease may be
terminated, amended or compliance therewith waived (either generally or in a
particular instance, retroactively or prospectively) except by an instrument or
instruments in writing executed by each party hereto and except as may be
permitted by the terms of the other Operative Agreements.
24.5 Business Days.
If any payment is to be made hereunder or any action is to be taken
hereunder on any date that is not a Business Day, such payment or action
otherwise required to be made or taken on such date shall be made or taken on
the immediately succeeding Business Day with the same force and effect as if
made or taken on such scheduled date and as to any payment (subject to accrual
and payment of interest for the period of such extension on such next succeeding
Business Day); provided, notwithstanding the foregoing, (a) where the next
succeeding Business Day falls in the next succeeding calendar month such payment
shall be made on the next preceding Business Day, (b) no Scheduled Payment Date
shall extend beyond the Maturity Date and (c) where a quarterly rent period (for
purposes of calculation of installments of Basic Rent) begins on a day for which
there is no numerically corresponding day in the calendar month in which such
quarterly rent period is to end, such quarterly rent period shall end on the
last Business Day of such calendar month.
26
<PAGE>
24.6 Directly or Indirectly.
Where any provision in this Lease refers to action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
24.7 Incorporation by Reference.
(a) The obligations of Lessee set forth in Sections 7.1 and 7.2 of the
Participation Agreement are hereby incorporated by reference.
(b) Any provision of any other Operative Agreement stated herein to be
incorporated by reference shall be construed as having been incorporated herein
with the same effect as if such provision had been set forth in this Lease in
full and shall survive any termination of the Operative Agreement from which
such provision is incorporated.
24.8 Uniform Commercial Code.
The parties hereto intend that this Lease be construed as a "finance
lease" under Article 2-A of the North Carolina Uniform Commercial Code.
24.9 Break-Amount.
In the case of any prepayment of all or any portion of the unpaid Rent,
Lessee shall pay Lessor, on the date specified by Lessor, an amount equal to the
Break-Amount provided such payment is permitted by Law.
24.10 Title Representation by Lessee.
Upon any sale or transfer of any Equipment to any Third Party Purchaser
(pursuant to the exercise of remedies upon the occurrence of a Lease Event of
Default, pursuant to Sections 10 or 22.2(b) of this Lease or at such other times
as requested by Lessor in connection with a sale or transfer or any Equipment to
any Third Party Purchaser) or a retention of the Equipment by Lessor pursuant to
Section 22.2(b) of this Lease, Lessee shall represent and warrant (pursuant to a
document satisfactory to such Third Party Purchaser or Lessor, as the case may
be) that good and marketable legal title in the applicable Equipment (other than
with regard to Lessor's Liens) has been conveyed to such Third Party Purchaser
or retained by Lessor, as the case may be. Lessee shall defend and indemnify
such Third Party Purchaser or Lessor in connection with any challenge made to
the above-referenced title, representation and warranty.
27
<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be duly
executed and delivered by their respective officers as of the day and year first
above written.
LESSOR:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity
except as expressly provided herein, but solely as
Owner Trustee under Coca-Cola Trust No. 97-1
By:
Name:
Title:
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
Name:
Title:
*Receipt of the original counterpart of the foregoing Lease is hereby
acknowledged on this day of _________, 1997.
NATIONSBANK, N.A.,
as Agent
By
Name:
Title:
*This acknowledgment is executed in the original counterpart only.
<PAGE>
Class __ Equipment
EXHIBIT A
LEASE SUPPLEMENT NO. __
(Coca-Cola Trust No. 97-1)
LEASE SUPPLEMENT NO. __(Coca-Cola Trust No. 97-1) dated as of
____________, 1997 (as amended, modified, supplemented, restated and/or replaced
from time to time, the "Lease Supplement") between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity
except as expressly provided herein, but solely as Owner Trustee under Coca-Cola
Trust No. 97-1 (together with its successors and assigns permitted hereunder,
the "Lessor"), and COCA-COLA BOTTLING CO. CONSOLIDATED, a Delaware corporation
(together with its successors and assigns permitted under the Lease referred to
below, the "Lessee");
W I T N E S S E T H:
Lessor and Lessee have heretofore entered into that certain Master
Equipment Lease Agreement (Coca-Cola Trust No. 97-1) dated as of April 10, 1997
(as amended, modified, supplemented, restated and/or replaced from time to time,
the "Lease"). The Lease provides for the execution and delivery of a Lease
Supplement substantially in the form hereof for the purpose of confirming the
acceptance and lease of the Units under the Lease as and when delivered by
Lessor to Lessee in accordance with the terms thereof. Unless otherwise defined
herein, capitalized terms used herein shall have the meanings specified in
Appendix A to the Lease.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
1. Lessee hereby acknowledges and confirms that as between Lessee and
Lessor, Lessee has approved the Units identified on Schedule 1 hereto at the
time and on the date set forth in the Certificate of Acceptance.
2. Lessor hereby confirms delivery and lease to Lessee, and Lessee
hereby confirms acceptance and lease from Lessor, under the Lease as hereby
supplemented, the Units listed on Schedule 1 hereto.
3. Lessee hereby represents and warrants that to the best of its
knowledge no Event of Loss has occurred with respect to the Units set forth on
Schedule 1 hereto as of the date hereof.
4. The Maximum Lessee Risk Amount for the Equipment is an amount
computed in accordance with Schedule 2 hereto.
<PAGE>
5. The Maximum Lessor Risk Amount for the Equipment is an amount
computed in accordance with Schedule 3 hereto.
6. Stipulated Loss Value for the Equipment is an amount computed in
accordance with Schedule 4 hereto.
7. The aggregate Equipment Cost for the Units leased under this Lease
Supplement is $________.
8. The Interim Term Commencement Date for the Equipment is
______________.
9. The Interim Term Expiration Date for the Equipment is January 15,
1998.
10. The Basic Term Commencement Date for the Equipment is January 15,
1998.
11. The Basic Term Expiration Date for the Equipment is January 15,
2000.
12. Lessee may renew the Lease for no more than __________ consecutive
Renewal Terms, each of one year's duration. [for Class A Equipment, one Renewal
Term; for Class B Equipment, three Renewal Terms; and for Class C Equipment,
three Renewal Terms (subject to extension for an additional two Renewal Terms in
accordance with Section 22.3 of the Lease).]
13. The Final Renewal Term Expiration Date is [January 15, 2001 for
Class A Equipment] [January 15, 2003 for Class B Equipment] [January 15, 2003
for Class C Equipment (subject, regarding Class C Equipment, to extension for an
additional two years in accordance with the provisions of Section 22.3 of the
Lease)].
14. Lessee hereby confirms its agreement, in accordance with the Lease
as supplemented by this Lease Supplement, to pay Rent to Lessor or such other
Person, as appropriate, as provided for in the Lease.
15. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Lease Supplement
may refer to the "Master Equipment Lease Agreement, dated as of April 10, 1997",
the "Lease Agreement, dated as of April 10, 1997," or the "Lease, dated as of
April 10, 1997," or may identify the Lease in any other respect without making
specific reference to this Lease Supplement, but nevertheless all such
references shall be deemed to include this Lease Supplement, unless the context
shall otherwise require.
16. This Lease Supplement shall be construed in connection with and as
part of the Lease, and all terms, conditions and covenants contained in the
Lease (a) are hereby incorporated herein by reference as though restated in
their entirety and (b) shall be and remain in full force and effect.
<PAGE>
17. This Lease Supplement may be executed in any number of
counterparts, each executed counterpart constituting an original and in each
case such counterparts shall constitute but one and the same instrument;
provided, that to the extent this Lease Supplement constitutes chattel paper (as
such term is defined in the Uniform Commercial Code) no Lien on this Lease
Supplement may be created through the transfer or possession of any counterpart
hereof other than the counterpart bearing the receipt therefor executed by the
Agent on the signature page hereof, which counterpart shall constitute the only
"original" hereof for purposes of the Uniform Commercial Code.
18. This Lease Supplement shall in all respects, including without
limitation all matters of construction, validity and performance, be governed by
and construed in accordance with the internal Laws of the State of North
Carolina.
<PAGE>
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Supplement
to be duly executed and delivered by their respective officers as of the day and
year first above written.
LESSOR:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity except as expressly
provided herein, but solely as Owner
Trustee under Coca-Cola Trust No.
97-1
By:
Name:
Title:
LESSEE:
COCA-COLA BOTTLING CO. CONSOLIDATED
By:
Name:
Title:
*Receipt of the original counterpart of the foregoing Lease Supplement
is hereby acknowledged on this ___ day of __________, 1997.
NATIONSBANK, N.A.,
as Agent
By:
Name:
Title:
- -----------------------------------
* This acknowledgment is executed in the original counterpart only.
<PAGE>
SCHEDULE 1
DESCRIPTION OF THE EQUIPMENT/EQUIPMENT COST
</TABLE>
<TABLE>
<CAPTION>
Make Model Serial Number [VIN] [Registration Number] Class Equipment Cost
<S> <C>
</TABLE>
<PAGE>
SCHEDULE 2
MAXIMUM LESSEE RISK AMOUNT
Maximum Lessee
Scheduled Payment Date Risk Percentage*
--------- ----
--------- ----
--------- ----
*Expressed as a percentage of Equipment Cost.
<PAGE>
SCHEDULE 3
MAXIMUM LESSOR RISK AMOUNT
Maximum Lessor
Scheduled Payment Date Risk Percentage*
-------- ----
-------- ----
-------- ----
*Expressed as a percentage of Equipment Cost.
<PAGE>
SCHEDULE 4
STIPULATED LOSS VALUE
During the Interim Term, the Stipulated Loss Value for each Unit under this
Lease Supplement shall be an amount equal to the product of _________ multiplied
by the Equipment Cost of such Unit. During the Basic Term and each Renewal Term,
if any, the Stipulated Loss Value for each Unit under this Lease Supplement
shall be computed as set forth below:
Stipulated Loss
Scheduled Payment Date Value Percentage*
- ------------------------------------
*Expressed as a percentage of Equipment Cost.
<PAGE>
APPENDIX A
COCA-COLA TRUST NO. 97-1
DEFINITIONS
General Provisions
The following terms shall have the following meanings for all purposes
of the Operative Agreements referred to below, unless otherwise defined in an
Operative Agreement or the context thereof shall otherwise require. Such
meanings shall be equally applicable to both the singular and the plural forms
of the terms herein defined. In the case of any conflict between the provisions
of this Appendix A and the provisions of the main body of any Operative
Agreement, the provisions of the main body of such Operative Agreement shall
control the construction of such Operative Agreement.
Unless the context otherwise requires, (i) references to agreements
shall be deemed to mean and include such agreements as the same may be amended,
modified, supplemented, restated and/or replaced from time to time to the extent
permitted by the Operative Agreements, (ii) references to parties to agreements
shall be deemed to include the successors and assigns of such parties permitted
in accordance with the Operative Agreements, (iii) references in any document to
articles, sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits are references to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits in or to such document, (iv) the headings,
subheadings and table of contents used in any document are solely for
convenience of reference and shall not constitute a part of any such document
nor shall they affect the meaning, construction or effect of any provision
thereof, (v) references to any law includes any amendment or modification to
such law and any rules or regulations issued thereunder or any law enacted in
substitution or replacement therefor, (vi) when used in any document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof, (vii) references to "including" means
including without limiting the generality of any description preceding such term
and for purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned, (viii)
each of the parties to the Operative Agreements and their counsel have reviewed
and revised, or requested revisions to, the Operative Agreements, and the usual
rule of construction that any ambiguities are to be resolved against the
drafting party shall be inapplicable in the construction and interpretation of
the Operative Agreements and any amendments or exhibits thereto and (ix)
capitalized terms used in any Operative Agreements which are not defined in this
Appendix A but are defined in another Operative Agreement shall have the
meanings so ascribed to such terms in the applicable Operative Agreement.
<PAGE>
Defined Terms
"A-2/P-2 Event" shall have the meaning specified in Section 8.4 of the
Participation Agreement.
"A-3/P-3 Event" shall have the meaning specified in Section 8.4 of the
Participation Agreement.
"ABR Holder Advance" shall mean each Holder Advance, at such time as
such Holder Advance bears yield at the Reference Rate plus 0.500% or the CD Rate
plus 0.900%, as the case may be.
"ABR Loan" shall mean each Loan, at such time as such Loan bears
interest at the Reference Rate or the CD Rate plus the Applicable Margin, as the
case may be.
"ABR Rate" shall mean, as selected by the Lessee (on behalf of the
Owner Trustee), the Reference Rate or the CD Rate; provided, if the Agent gives
the Owner Trustee and the Lessee notice that the CD Rate cannot be determined or
is unlawful or that any Lender or Holder is unable to match funds with respect
to any CD Loan or the CD Holder Advance, as the case may be, then the ABR Rate
shall be the Reference Rate until the Interest Period, Payment Period or any
other period of time at which amounts are to bear interest at the ABR Rate, as
the case may be, commencing immediately following the date on which the CD Rate
can be determined, is lawful and is capable of being match funded by the Lenders
and the Holders (if the CD Rate is elected at such time by the Lessee (on behalf
of the Owner Trustee)).
"Acceptance Date" shall mean the dates as of which Units (i) are
purchased by the Owner Trustee in accordance with the Participation Agreement
and (ii) become leased assets under the applicable Lease Supplement.
"Acquisition Cash Flow" shall mean operating income for the applicable
period plus any amounts deducted for depreciation, amortization and operating
lease expense in determining operating income of all assets, franchises and
businesses acquired during the most recently completed quarter or any of the
preceding three calendar quarters by the Lessee or any its Consolidated
Subsidiaries (to the extent not included in Consolidated Operating Income for
the applicable period), determined using historical financial statements of such
assets, franchises and businesses acquired with appropriate adjustments thereto
in order to reflect such operating income, depreciation, amortization and
operating lease expense on an actual historical combined pro forma basis as if
the assets, franchises and businesses acquired had been owned by the Lessee
during the relevant period. Operating income as used in the preceding sentence
shall be determined using the same method prescribed for determining
Consolidated Operating Income and using GAAP applied consistently with the
application of GAAP in preparation of the Lessee's financial statements for the
relevant period and such determination shall be in all respects reasonably
satisfactory to the Majority In Interest and the Majority Holders.
A-2
<PAGE>
"Additionally Insured Parties" shall mean the Owner Trustee (in its
individual capacity and as trustee), the Holders, the Lenders, the Bank Lenders,
the Liquidity Provider and the Agent.
"Additional Trustee" shall have the meaning specified in Section
10.02(a) of the Trust Agreement.
"Administrative Fee" shall mean the administrative fee payable in
accordance with the terms and conditions of the Fee Letter.
"Advance Amount" shall mean, as of any date, the amount of the Holder
Advance made by a Holder pursuant to Section 2.2(a) of the Participation
Agreement and evidenced by a Certificate, less any redemptions of the Holder
Advance pursuant to Article IV of the Trust Agreement.
"Affected Bank Lender" shall have the meaning specified in Section
8.5(a) of the Participation Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by, or is under a common
control with, such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing.
"After-Tax Basis" shall mean on a basis such that any payment to be
received or deemed to be received shall be supplemented by a further payment so
that the sum of the two payments, after deducting from such payments the amount
of all Taxes resulting from the receipt or accrual of such payments (net of any
current credits or deductions or other Tax benefits arising therefrom, to the
extent actually realized), shall be equal to the payments to be received or
deemed to have been received.
"Agent" shall mean NationsBank, as collateral agent for the Lenders and
the Holders pursuant to the Loan Agreement and as administrative agent for the
Owner Trustee (in its individual and its trust capacity), the Holders, the
Lenders and the Bank Lenders pursuant to the Participation Agreement and the
Loan Agreement, or any successor agent appointed in accordance with the terms of
the Loan Agreement.
"Aggregate Advanced Amount" shall have the meaning specified in each
Note.
"Aggregate Funded Amount" shall mean, collectively, the Aggregate
Holder Funded Amount and the Aggregate Lender Funded Amount and, individually,
shall mean the Aggregate Holder Funded Amount or the Aggregate Lender Funded
Amount, as the case may be.
"Aggregate Holder Advanced Amount" shall have the meaning specified in
each Certificate.
A-3
<PAGE>
"Aggregate Holder Funded Amount" shall have the meaning specified in
Section 2.2(a) of the Participation Agreement.
"Aggregate Lender Funded Amount" shall have the meaning specified in
Section 2.2(b) of the Participation Agreement.
"Applicable Margin" shall mean the percentage per annum set forth below
opposite the applicable Debt Rating or Consolidated Funded Indebtedness/Cash
Flow Ratio of the Lessee (as determined and adjusted pursuant to the procedures
set forth in the paragraph of this definition following the rate grid).
<TABLE>
<CAPTION>
Consolidated Applicable
Funded Indebtedness/ Debt Rating Applicable Margin Margin for
Cash Flow Ratio or S&P/Moody's for LIBOR Loans CD Loans
<S> <C> <C> <C>
a) Greater than or a) --
Equal to 5.00 to 0.375% 0.375%
1.00
b) Less than 5.00 to b) BBB-/Baa3
1.00 but Greater 0.250% 0.250%
than or Equal to
4.00 to 1.00
c) Less than 4.00 to c) BBB/Baa2
1.00 but Greater 0.225% 0.225%
than or Equal to
3.00 to 1.00
d) Less than 3.00 to d) BBB+/Baa1
1.00 but Greater 0.200% 0.200%
than or Equal to
2.00 to 1.00
e) Less than 2.00 to e) A/A2 or
1.00 higher 0.170% 0.170%
</TABLE>
For purposes of the foregoing, (i) the Applicable Margin on the Closing Date is
0.225% and thereafter the Applicable Margin shall be adjusted on each
Calculation Date based on the most recent Compliance Certificate and upon the
date of receipt of each Notice of Delivery based on such Notice of Delivery,
(ii) if the Lessee fails to provide the Compliance Certificate on or before the
most recently occurring Calculation Date, the Applicable Margin from such
Calculation Date shall be 0.375% until such time that an appropriate Compliance
Certificate is provided whereupon the Applicable Margin shall be determined
based on the information provided in such Compliance Certificate, (iii) if the
applicable Debt Rating and Consolidated Funded Debt/Cash Flow Ratio would
provide for different Applicable Margins the lower of the two Applicable Margins
shall apply, (iv) if the Debt Rating established by Moody's and S & P shall fall
within different categories, the rate shall be determined by reference to the
superior (or numerically lowest)
A-4
<PAGE>
category, (v) if the Debt Rating is changed by either Moody's or S&P, such
change shall be deemed to be effective (for purposes of determining the
Applicable Margin) as of the Calculation Date next following the date of such
change, and (vi) the Applicable Margin applicable from time to time shall be
effective from one Calculation Date or the date of receipt of a Notice of
Delivery, as the case may be, to the next Calculation Date or the date of
receipt of a Notice of Delivery, as the case may be, and any adjustment in the
Applicable Margin shall be applicable to all existing Loans as well as any new
Loans made or issued.
"Approved State" shall mean each of Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, Ohio, Pennsylvania, South Carolina,
Tennessee, Virginia, West Virginia and to the extent the Lessee has given notice
thereof pursuant to Section 5.6 of the Participation Agreement, each other state
in the continental United States to which any Unit has been relocated.
"Arrangement Fee" shall mean the arrangement fee payable in accordance
with the terms and conditions of the Fee Letter.
"Assignment Agreement" shall have the meaning specified in Section
8.1(a) of the Participation Agreement.
"Bank Assignment" shall have the meaning specified in Section 8.1(a) of
the Participation Agreement.
"Bank Commitment Expiration Date" shall have the meaning specified in
Section 8.3(a) of the Participation Agreement.
"Bank Lender Termination Date" shall have the meaning specified in
Section 8.5(b) of the Participation Agreement.
"Bank Lenders" shall mean NationsBank and certain other financial
institutions from time to time parties to the Operative Agreements, as bank
lenders.
"Bank of America" shall mean Bank of America National Trust and Savings
Association.
"Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of
1978, 11 U.S.C. ss. 101 et seq.
"Basic Rent" shall mean the sum of (i) the Lessor Basic Rent, plus
without duplication (ii) the Loan Basic Rent, each of the foregoing calculated
as of the applicable Payment Date.
"Basic Term" shall mean a period for lease of the Equipment under the
Lease specified in Section 3.1 of the Lease.
"Basic Term Commencement Date" shall mean January 15, 1998.
A-5
<PAGE>
"Basic Term Expiration Date" shall mean January 15, 2000.
"Beneficial Interest" shall mean the interest of each Holder under the
Trust Agreement.
"Break-Amount" shall mean the amounts payable by the Owner Trustee
(with funds provided by the Lessee as Supplemental Rent) from time to time under
Section 9.3 of the Participation Agreement on the terms and conditions of such
Section 9.3.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day other than a Saturday, Sunday or a day on which
commercial banking institutions are authorized or required by Law or executive
order to be closed in Charlotte, North Carolina, New York, New York, Atlanta,
Georgia and Salt Lake City, Utah and (ii) with respect to all notices,
determinations, fundings and payments with respect to LIBOR Loans or LIBOR
Holder Advances, any Business Day described in clause (i) above and that is also
a day on which commercial banks in London are open for international business
(including dealings in dollar deposits within the London interbank market).
"Calculation Date" shall mean the date five Business Days after the
date by which the Lessee is required to provide the Compliance Certificate in
accordance with the provisions of Section 5.1(d) of the Participation Agreement.
"Capitalized Lease" shall mean any lease which, in accordance with
GAAP, is required to be capitalized on the balance sheet of the Lessee.
"Capitalized Lease Obligations" of any Person shall mean the aggregate
amount which, in accordance with GAAP, is required to be reported as a liability
on the balance sheet of such Person as lessee under a Capitalized Lease.
"CD Holder Advance" shall mean each Holder Advance at such time as such
Holder Advance bears yield at the CD Rate plus 0.900%.
"CD Loan" shall mean (i) each Loan, at such times as such Loan bears
interest at the CD Rate plus the Applicable Margin, (ii) the Liquidity
Provider's participation in each Loan (at such times as such Loan bears interest
at the CD Rate plus the Applicable Margin) while the Liquidity Provider has
funded amounts outstanding pursuant to the Liquidity Facility with respect to
such Loan and (iii) the amounts extended by a Bank Lender (at such times as such
amounts bear interest at the CD Rate plus the Applicable Margin) to fund the CP
Purchase Price pursuant to Section 8.2(a) of the Participation Agreement.
"CD Rate" shall mean, for any day, with respect to each proposed or
existing CD Loan or CD Holder Advance, as the case may be, a fluctuating rate
per annum determined by the Agent as the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the CD Reserve Percentage and (b) the
CD Assessment Rate. For purposes of this definition, the following terms shall
have the following meanings: "Three-Month Secondary CD Rate" means, for any day,
the secondary
A-6
<PAGE>
market rate for three-month certificates of deposit reported as being in effect
on such day (or if such day is not a Business Day, the next following Business
Day) by the Board of Governors of the Federal Reserve System (the "Board"),
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate is not so reported, the average (rounded upwards to the
nearest 1/100th of 1%) of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day or next preceding
Business Day by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; "CD Reserve Percentage"
means, for any day, as applied to any calculation of the CD Rate, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days or more;
and "CD Assessment Rate" means, for any day, the rate per annum (rounded upward
to the nearest 1/100 of 1%) determined in good faith by the Agent to be the
average of the rates per annum determined by the Agent in accordance with its
usual procedures (which determination shall be conclusive absent manifest error)
to be the maximum effective assessment rate per annum payable by the Agent to
the Federal Reserve Insurance Corporation (or any successor) for such day for
insurance on United States dollar time deposits, exclusive of any credit allowed
against such annual assessment on account of assessment payments made or to be
made by such bank. The CD Rate shall be adjusted automatically as of the
effective date of each change in the Assessment Rate.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate of Acceptance" shall have the meaning specified in Section
2.3(c) of the Participation Agreement.
"Certificate of Title" shall mean each certificate of title or
registration respecting any Unit naming the Owner Trustee as the owner of such
Unit and the Agent as the first priority, and sole, lienholder respecting such
Unit.
"Certificates" shall mean, collectively each Class A Certificate, Class
B Certificate and Class C Certificate.
"Class" or "Class of Equipment" shall mean Class A Equipment, Class B
Equipment or Class C Equipment, as the context requires.
"Class A Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class A Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such
A-7
<PAGE>
Certificate, and shall include each Certificate issued in exchange therefor or
replacement thereof pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
"Class B Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class B Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such Certificate, and shall
include each Certificate issued in exchange therefor or replacement thereof
pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
"Class C Certificate" shall mean each Certificate, substantially in the
form set forth therefor in Exhibit A to the Trust Agreement, issued by the Owner
Trustee to each Holder pursuant to Section 4.02 of the Trust Agreement, in an
amount equal to such Holder's Holder Class C Commitment, bearing yield and
payable as provided in the Trust Agreement and/or such Certificate, and shall
include each Certificate issued in exchange therefor or replacement thereof
pursuant to Sections 4.07 or 4.08 of the Trust Agreement.
"Class A Equipment" shall mean the new over-the-road tractors
referenced in each applicable Lease Supplement and identified as Class A
Equipment.
"Class B Equipment" shall mean the used beverage vending equipment, new
rolling stock and new lift trucks referenced in each applicable Lease Supplement
and identified as Class B Equipment.
"Class C Equipment" shall mean the new beverage vending equipment
referenced in each applicable Lease Supplement and identified as Class C
Equipment.
"Class A Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class A Commitment, bearing
interest at the rates and payable as provided in the Loan Agreement, and shall
include each Note issued in exchange therefor or replacement thereof pursuant to
Sections 2.7 or 2.8 of the Loan Agreement.
"Class B Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class B Commitment, bearing
interest at the rates and payable as provided in the Loan Agreement, and shall
include each Note issued in exchange therefor or replacement thereof pursuant to
Sections 2.7 or 2.8 of the Loan Agreement.
"Class C Note" shall mean each Note, substantially in the form set
forth as Exhibit A to the Loan Agreement, issued by the Owner Trustee pursuant
to Section 2.2 of the Loan Agreement and authenticated by the Agent, in a
principal amount equal to each Lender's Lender Class C Commitment, bearing
interest at the rates and payable as provided in the Loan
A-8
<PAGE>
Agreement, and shall include each Note issued in exchange therefor or
replacement thereof pursuant to Sections 2.7 or 2.8 of the Loan Agreement.
"Closing" shall mean the initial closing of the Overall Transaction, at
which executed copies of, among other things, the Participation Agreement,
Lease, Trust Agreement, the Certificates, the Loan Agreement and the Notes are
delivered.
"Closing Date" shall mean the date as of which the Closing occurs,
which in any event shall be on or prior to April 30, 1997 unless otherwise
agreed by all parties to the Participation Agreement.
"Code" shall mean the Internal Revenue Code of 1986.
"Collateral" shall have the meaning specified in the Granting Clause of
the Loan Agreement.
"Collateral Agency Agreement" shall mean the Collateral Agency
Agreement dated as of the Closing Date between the Owner Trustee, the Lessee and
consented to by the Agent.
"Compliance Certificate" shall mean a certificate of the Lessee in the
form of Exhibit D to the Participation Agreement, which shall be delivered from
time to time by the Lessee in accordance with Section 5.1(d) of the
Participation Agreement.
"Commercial Paper" shall mean the promissory notes of the Initial
Lender issued by the Initial Lender in the commercial paper market, the proceeds
of which are used to fund (or to refinance the funding of) a Loan.
"Confidential Information" shall have the meaning specified in Section
10.10 of the Participation Agreement.
"Consolidated Cash Flow" shall have the meaning specified in the Credit
Agreement.
"Consolidated Funded Indebtedness" shall have the meaning specified in
the Credit Agreement.
"Consolidated Funded Indebtedness/Cash Flow Ratio" shall have the
meaning specified in the Credit Agreement.
"Consolidated Operating Income" shall have the meaning specified in the
Credit Agreement.
"Consolidated Subsidiaries" shall have the meaning specified in the
Credit Agreement.
"Contingent Obligation" shall have the meaning specified in the Credit
Agreement.
A-9
<PAGE>
"Contractual Obligation" shall have the meaning specified in Section
3.2(d) of the Participation Agreement.
"Controlled Group Member" shall mean each trade or business (whether or
not incorporated) which together with the Lessee is treated as a single employer
under Section 4001(b)(1) of ERISA.
"Covered Income Tax" shall have the meaning specified in Section 7.1(b)
of the Participation Agreement.
"CP Purchase Price" shall have the meaning specified in Section 8.2(a)
of the Participation Agreement.
"CP Rate" shall mean the interest rate or weighted average of the
rates, at which Commercial Paper is sold from time to time by any placement
agent or commercial paper dealer selected by the Initial Lender, as determined
by the Initial Lender and shall include the interest-bearing equivalent of any
Commercial Paper sold at a discount rate.
"Credit Agreement" shall mean the Amended and Restated Credit Agreement
dated as of December 21, 1995 among the Lessee, the financial institutions
listed on the signature pages thereof, NationsBank, as administrative agent and
syndication agent, and Bank of America, as documentation agent. The Credit
Agreement shall not be deemed to refer to any replacement credit agreement.
"Credit Agreement Event of Default" shall mean an "Event of Default" as
such term is defined in Section 7 of the Credit Agreement.
"Credit Documents" shall mean the Loan Agreement, the Notes and the
Security Documents.
"Credit Support Provider" shall mean the Person or Persons who provide
credit support to the Initial Lender in connection with the Initial Lender's
issuance of Commercial Paper.
"Dealer Fee" shall mean the dealer fee payable in accordance with the
terms and conditions of the Fee Letter.
"Debt Amortization" with respect to any Note shall mean the
amortization schedule of principal payments applicable thereto attached as Annex
2(a), Annex 2(b) or Annex 2(c), as applicable, as to the Loan Agreement.
"Debt Percentage" shall mean for each Class of Equipment the percentage
set forth therefor in Schedule 2 to the Participation Agreement.
"Debt Rate" shall mean (i) while the Initial Lender is the Lender the
interest rate equal to the CP Rate; provided, however, if the Liquidity Provider
has funded amounts outstanding
A-10
<PAGE>
pursuant to the Liquidity Facility with respect to the Loans, the Debt Rate
shall be (a) the LP Rate for the principal amount of the Loans equal to the
aggregate outstanding principal amount funded with respect to the Loans under
the Liquidity Facility and (b) the CP Rate for the principal amount of the Loans
not bearing interest at the LP Rate pursuant to the preceding subclause (a), and
(ii) with respect to Notes held by a Bank Lender, as Lender, from and after the
Effective Date of the Bank Assignment of such Lender, the LP Rate.
"Debt Rating" shall mean the rating assigned from time to time by
either S&P or Moody's with respect to Funded Indebtedness of the Lessee.
"Default" shall mean, collectively, each Lease Default and each Loan
Agreement Default.
"Determination Date" shall mean the last day of each fiscal quarter of
the Lessee.
"EFC" shall mean Enterprise Funding Corporation, a Delaware
corporation.
"Effective Date" shall have the meaning specified in Section 8.1(a) of
the Participation Agreement.
"Eligible Receivable" shall mean, for the purposes of the Liquidity
Facility and the Operative Agreements, as of any date of determination, the
aggregate Equipment Cost for all Units of Equipment leased under all Lease
Supplements, minus the aggregate amounts paid to the Agent on or prior to such
date in respect of either principal payments on Notes or redemption of Holder
Advances.
"Environmental Law" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases or threatened releases of any Hazardous
Material into ambient air, surface water, ground water, publicly owned treatment
works, septic system, or land, or otherwise relating to the handling, storage,
treatment, generation, use, or disposal of Hazardous Material, pollution or to
the protection of health or the environment, including without limitation
CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq.,
and state statutes analogous thereto.
"Environmental Violation" shall mean the receipt by the Lessee of a
notice from any Person of violation under Environmental Law when the violation
referenced in such notice of violation is not remedied in a timely manner.
"Equipment" shall mean the Class A Equipment, the Class B Equipment and
the Class C Equipment purchased or otherwise acquired using proceeds of the
Holder Advances or the Loans, as such is specifically described in each
applicable Lease Supplement.
"Equipment Cost" shall mean, collectively, the aggregate sum of the
purchase price for all the Equipment paid by the Owner Trustee to each Seller
pursuant to Section 2 of the Participation Agreement and as set forth in each
applicable Lease Supplement with respect to the Equipment and, individually,
such purchase price allocable to such Unit.
A-11
<PAGE>
"Equity Percentage" shall mean for each Class of Equipment the
percentage set forth therefor in Schedule 2 to the Participation Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means an entity which is under common control with
the Lessee within the meaning of Section 4001(a)(14) of ERISA, or is a member of
a group which includes the Lessee and which is treated as a single employer
under Sections 414(b) or (c) of the Code.
"Event of Default" shall mean, collectively, each Lease Event of
Default and each Loan Agreement Event of Default.
"Event of Loss" shall have the meaning specified in Section 11.1 of the
Lease.
"Excepted Property" shall mean (i) all indemnity payments (including
without limitation payments pursuant to Section 7 of the Participation
Agreement, whether made by adjustment to Basic Rent under the Lease or
otherwise) to which any Holder, the Owner Trustee or any of their respective
successors, permitted assigns, directors, officers, employees, servants or
agents is entitled pursuant to the Operative Agreements, (ii) any right, title
or interest of the Owner Trustee or any Holder to any payment which by the terms
of Section 17 of the Lease or any corresponding payment under Section 3.3 of the
Lease that is payable to the Owner Trustee or to any Holder, as the case may be,
(iii) any insurance proceeds payable under insurance maintained by the Owner
Trustee or any Holder respecting the Equipment, (iv) any insurance proceeds
payable (or payments with respect to rights self-insured or policy deductibles)
to the Owner Trustee or to any Holder, or any of their directors, officers,
employees, servants or agents under any insurance maintained by the Lessee
pursuant to Section 12 of the Lease or by any other Person (or governmental
indemnities in lieu thereof or in addition thereto), (v) any amount payable to
any Holder by any Transferee as the purchase price of such Holder's interest in
the Trust Estate in compliance with the terms of the Participation Agreement and
the Trust Agreement, (vi) payments owing to any Holder, including a return of
funds to such Holder, in the event the Closing does not occur, (vii) all right,
title and interest of the Owner Trustee and any Holder to amounts distributable
and/or distributed from time to time to them as provided in Section 6.9 of the
Participation Agreement and such other rights as are specifically reserved or
granted to any Holder and the Owner Trustee under the Loan Agreement, (viii)
Transaction Costs and other amounts, fees, disbursements and expenses paid or
payable to or for the benefit of the Owner Trustee, (ix) upon termination of the
Loan Agreement in accordance with the terms thereof, all remaining property
covered by the Security Documents, (x) payments in respect of yield on the
Certificates, (xi) payments in respect of interest to the extent attributable to
payments otherwise referenced in this definition of "Excepted Property", (xii)
the respective rights of the Owner Trustee or the Holder to the proceeds of the
foregoing and (xiii) any rights of the Holder or the Owner Trustee to demand,
collect, sue for or otherwise receive and enforce payment of the foregoing
amounts. For purposes of this definition, references to the Owner Trustee shall
be deemed to refer to the Owner Trustee in its trust and individual capacities.
A-12
<PAGE>
"Expenses" shall have the meaning specified in Section 7.2 of the
Participation Agreement.
"Expiration Date" shall mean (i) initially, January 15, 2000 with
respect to all Certificates and (ii) thereafter, if the Lessee properly elects a
Renewal Term for a particular Class of Equipment as provided in Section 22.3 of
the Lease, the Expiration Date for the corresponding Class of Certificates shall
be automatically extended to the last day of such Renewal Term; provided,
however, the Expiration Date for the Class C Certificates shall not be extended
beyond January 15, 2003, unless the Bank Lenders have extended the Bank
Commitment Expiration Date for a period at least as long as the extension period
for the Class C Certificates.
"Facility Fee" shall mean the facility fee payable on July 15, 1997,
October 15, 1997, the Basic Term Commencement Date and thereafter each Scheduled
Payment Date during the Term, which fee shall be the product of the Parallel
Purchase Commitment multiplied by the percentage per annum set forth below
opposite the applicable Debt Rating or Consolidated Funded Indebtedness/Cash
Flow Ratio of the Lessee (as determined and adjusted pursuant to the procedures
set forth in the paragraph of this definition following the rate grid).
<TABLE>
<CAPTION>
Consolidated
Funded Indebtedness/ Debt Rating Applicable Percentage
Cash Flow Ratio or S&P/Moody's for Facility Fee
<S> <C> <C>
a) Greater than or a) ---
Equal to 5.00 to 0.250%
1.00
b) Less than 5.00 to b) BBB-/Baa3
1.00 but Greater 0.150%
than or Equal to
4.00 to 1.00
c) Less than 4.00 to c) BBB/Baa2
1.00 but Greater 0.125%
than or Equal to
3.00 to 1.00
d) Less than 3.00 to d) BBB+/Baa1
1.00 but Greater 0.100%
than or Equal to
2.00 to 1.00
e) Less than 2.00 to e) A/A2 or
1.00 higher 0.080%
</TABLE>
For purposes of the foregoing, (i) the Facility Fee on the Closing Date
is 0.125% and thereafter the Facility Fee shall be adjusted on each Calculation
Date based on the most recent Compliance Certificate and upon the date of
receipt of each Notice of Delivery based on such Notice of Delivery, (ii) if the
Lessee fails to provide the Compliance Certificate on or before the most
recently occurring Calculation Date, the Facility Fee from such Calculation Date
shall be 0.250% until such time that an appropriate Compliance Certificate is
provided whereupon the Facility Fee
A-13
<PAGE>
shall be determined based on the information provided in such Compliance
Certificate, (iii) if the applicable Debt Rating and Consolidated Funded
Debt/Cash Flow Ratio would provide for a different Facility Fee the lower of the
two Facility Fees shall apply, (iv) if the Debt Rating established by Moody's
and S & P shall fall within different categories, the Facility Fee shall be
determined by reference to the superior (or numerically lowest) category, (v) if
the Debt Rating is changed by either Moody's or S&P, such change shall be deemed
to be effective (for purposes of determining the Facility Fee) as of the
Calculation Date next following the date of such change, and (vi) the Facility
Fee applicable from time to time shall be effective from one Calculation Date or
the date of receipt of a Notice of Delivery, as the case may be, to the next
Calculation Date or the date of receipt of a Notice of Delivery, as the case may
be. The Facility Fee shall be payable to the Agent, for distribution to each
Bank Lender, based on a fraction, the numerator of which is equal to the Bank
Lender's Lender Class Commitment and the denominator of which is equal to the
aggregate Lender Class Commitments of all of the Bank Lenders.
"Fair Market Sales Value" shall have the meaning specified in Section
15.5 of the Lease.
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum (rounded upwards, if necessary to the
nearest 1/100 of 1%) equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letter" shall mean the letter agreement dated as of the Closing
Date executed by the Initial Lender and acknowledged and agreed to by the Owner
Trustee and the Lessee.
"Fees" shall mean, collectively, the Program Fee, the Dealer Fee, the
Facility Fee and the Administrative Fee.
"Filing Materials" shall have the meaning specified in Section 3.3(n)
of the Participation Agreement.
"Final Renewal Term Expiration Date" shall mean the date specified
therefor in each applicable Lease Supplement.
"First Security" shall mean First Security Bank, National Association,
a national banking association.
"Funded Indebtedness" shall have the meaning specified in the Credit
Agreement.
"Funding Party" shall mean any Participant, the Liquidity Provider and
each Bank Lender.
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"GAAP" shall mean the generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"Governmental Authority" shall mean any nation or government, any
state, province, city, municipality or other political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory,
administrative or other such functions of or pertaining to government.
"Hazardous Materials" shall mean any of the following: (i) any
petroleum or petroleum product, explosives, radioactive materials, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (ii) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (iii) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law. The
foregoing definition shall apply only to regulated quantities of the above
referenced materials and shall not apply to consumer products or materials which
normally and customarily are used by the Lessee or are in the possession of the
Lessee in the ordinary course of its business, including in the operation of the
Equipment.
"Holder Advance" shall mean any advance made by any Holder to the Owner
Trustee pursuant to the terms of the Trust Agreement and the Participation
Agreement.
"Holder Agreements" shall mean the Operative Agreements to which any
Holder is or will be a party.
"Holder Class Commitment" shall mean in the aggregate the Holder Class
A Commitment, the Holder Class B Commitment and the Holder Class C Commitment
and individually shall refer to any of the foregoing, as applicable.
"Holder Class A Commitment" shall mean, respecting each Holder, its
respective Class A Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Class B Commitment" shall mean, respecting each Holder, its
respective Class B Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Class C Commitment" shall mean, respecting each Holder, its
respective Class C Commitment Amount referenced in Annex 1 to the Trust
Agreement.
"Holder Yield" shall mean, for each day during a Payment Period, (i)
the LIBOR Rate, determined two Business Days prior to the first day of such
Payment Period plus 0.900% or (ii) to
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the extent the Lessee (on behalf of the Owner Trustee) so elects, the CD Rate
plus 0.900% or the Reference Rate plus 0.500%, unless and until in any case the
Agent gives the Owner Trustee notice that the LIBOR Rate or the CD Rate, as the
case may be, cannot be determined or is unlawful or that any Holder is unable to
obtain matching deposits in the London interbank market respecting any LIBOR
Holder Advance or otherwise match funds with respect to any CD Holder Advance,
in which case, upon such notice, the Holder Yield for all subsequent Payment
Periods commencing with the Yield Payment Date next following such notice, until
the Payment Period commencing immediately following the date which the LIBOR
Rate or the CD Rate, as the case may be, can be determined, is lawful and is
capable of being match funded by the Holders, shall be the Reference Rate plus
0.500%.
"Holders" shall mean NBLC and SunTrust Bank, Atlanta.
"Incorporated Covenants" shall have the meaning specified in Section
5.2 of the Participation Agreement.
"Incorporated Representations" shall have the meaning specified in
Section 5.2 of the Participation Agreement.
"Indebtedness" shall have the meaning specified in the Credit
Agreement.
"Indemnified Person" shall mean the Owner Trustee (in its individual
capacity and as trustee), each Holder, each Lender, each Bank Lender, the
Liquidity Provider, the Liquidity Facility Participants, the Agent, and each of
their respective Affiliates, officers, directors, stockholders, successors,
assigns, agents and servants.
"Initial Lender" shall mean EFC.
"Interest Component" shall mean, (i) with respect to any Commercial
Paper issued on an interest bearing basis, the interest payable on such
Commercial Paper at its maturity and (ii) with respect to any Commercial Paper
issued on a discount basis, the portion of the face amount of such Commercial
Paper representing the discount incurred in respect thereof.
"Interest Payment Date" shall mean (i) as to any Loan bearing interest
at the CP Rate, each day the Commercial Paper matures, (ii) as to any LIBOR
Loan, the last day of the Interest Period or other period of time at which the
Loan is to bear interest at the LIBOR Rate applicable to such LIBOR Loan;
provided, if such Interest Period or other period of time is longer than three
months, interest shall also be payable on the last Business Day of the third
month of such Interest Period or other period of time, (iii) as to any ABR Loan,
July 15, 1997, October 15, 1997, the Interim Term Expiration Date and each
Scheduled Payment Date and (iv) as to all Loans, the date of any voluntary or
involuntary payment, prepayment, return or redemption, and the Maturity Date or
the Expiration Date, as the case may be.
"Interest Period" shall mean (i) as to any Loan bearing interest at the
CP Rate, the period, which may not exceed 95 days, beginning on the first day of
such Loan and ending on the last day
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of such Loan (as selected by the Lessee on behalf of the Owner Trustee but
subject in all cases to Section 2.3(d) of the Participation Agreement), (ii) as
to any LIBOR Loan, the period beginning on the date of such LIBOR Loan and
ending one, two, three or six months thereafter (as selected by the Lessee on
behalf of the Owner Trustee), (iii) as to any ABR Loan based on the Reference
Rate, the period beginning on the date of such ABR Loan and ending on the
maturity date of such ABR Loan (as selected by the Lessee on behalf of the Owner
Trustee) and (iv) as to any ABR Loan based on the CD Rate, the period beginning
on the date of such ABR Loan and ending on the maturity date of such CD Loan (as
selected by the Lessee on behalf of the Owner Trustee); provided, however, that
all of the foregoing provisions relating to Interest Periods are subject to the
following: (x) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
(except, regarding any LIBOR Loan, that where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding Business
Day), (y) no Interest Period shall extend beyond the Maturity Date or the
Expiration Date, as the case may be, and (z) where an Interest Period for a
LIBOR Loan begins on a day for which there is no numerically corresponding day
in the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last Business Day of such calendar month.
"Interim Term" shall have the meaning specified in Section 3.1 of the
Lease.
"Interim Term Commencement Date" shall mean the date set forth in the
applicable Lease Supplement as the Interim Term Commencement Date.
"Interim Term Expiration Date" shall mean January 15, 1998.
"Late Rate" shall mean (i) with respect to the portion of any payment
of Rent that would be required to be distributed to any holder of a Note
pursuant to the terms of the Operative Agreements, the lesser of 2% over the
Debt Rate and the maximum interest rate from time to time permitted by Law, and
(ii) with respect to the portion of any payment of Rent that would be required
to be distributed to the Owner Trustee in its individual or trust capacity or
any Holder, the lesser of 2% over the Holder Yield and the maximum interest rate
from time to time permitted by Law.
"Law" shall mean any statute, law, ordinance, regulation, rule,
directive, code, order, writ, license, permit, injunction or decree of any
Tribunal.
"Lease" shall mean the Master Equipment Lease Agreement (Coca-Cola
Trust No. 97-1) dated as of the Closing Date between the Lessor and the Lessee.
"Lease Default" shall mean an event which with notice or lapse of time
or both would become a Lease Event of Default.
"Lease Event of Default" shall mean an Event of Default as specified in
Section 14 of the Lease.
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"Lease Supplement" shall mean each Lease Supplement (Coca-Cola Trust
No. 97-1) dated as of the applicable Acceptance Date or the date that any
Replacement Unit is subjected to the Lease in each case between the Lessor and
the Lessee, substantially in the form of Exhibit A to the Lease, covering the
Units delivered on such Acceptance Date or such Replacement Unit, as the case
may be.
"Lender" shall mean the Initial Lender and to the extent any Bank
Lender becomes a holder of a Note, each such Bank Lender.
"Lender Agreements" shall mean the Operative Agreements to which the
Lenders are or will be a party.
"Lender Class Commitment" shall mean in the aggregate the Lender Class
A Commitment, the Lender Class B Commitment and the Lender Class C Commitment
and individually shall refer to any of the foregoing, as applicable.
"Lender Class A Commitment" shall mean respecting each Lender, its
respective Class A Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Class B Commitment" shall mean respecting each Lender, its
respective Class B Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Class C Commitment" shall mean respecting each Lender, its
respective Class C Commitment Amount referenced in Annex 1 to the Loan
Agreement.
"Lender Participant" shall mean and include each registered holder from
time to time of any Note issued under the Loan Agreement, including, so long as
it holds any Note issued thereunder and, to the extent the Liquidity Providers
fund amounts under either Liquidity Facility, the Liquidity Providers.
"Lessee" shall mean Coca-Cola Bottling Co. Consolidated, a Delaware
corporation.
"Lessee Agreements" shall mean the Operative Agreements to which the
Lessee is or will be a party.
"Lessor" shall mean First Security, not in its individual capacity
except as expressly provided in the Operating Agreements, but solely as Owner
Trustee under Coca-Cola Trust No. 97-1.
"Lessor Basic Rent" shall mean, (i) with respect to any Scheduled
Payment Date, the Holder Advances scheduled to be repaid on such Scheduled
Payment Date in accordance with Annex 2(a), Annex 2(b) or Annex 2(c), as the
case may be, of the Trust Agreement plus (ii) with respect to any Payment Date,
the amount of yield due on the outstanding Holder Advance on any Payment Date
pursuant to the Trust Agreement and/or any of the Certificates (but not
including interest on any overdue amounts).
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"Lessor's Liens" shall mean any Lien affecting, on or in respect of the
Equipment, the Lease or the Trust Estate arising as a result of (i) claims
against the Lessor (in its individual capacity or as Owner Trustee) or any
Holder, not related to the transactions contemplated by the Operative
Agreements, (ii) acts or omissions of the Lessor (in its individual capacity or
as Owner Trustee) or any Holder, not permitted under the Operative Agreements
and in breach of any covenant or agreement of such Person set forth in any of
the Operative Agreements, (iii) Taxes imposed against the Lessor (in its
individual capacity or as Owner Trustee) or any Holder or the Trust Estate which
are not indemnified against by the Lessee pursuant to the Participation
Agreement, except to the extent not due and payable or the amount or validity of
which is being contested in good faith by appropriate proceedings so long as
there is no material risk of the collection of, or other realization upon, the
Lien of the Taxes so contested or the impairment of the Lien of the Loan
Agreement or the loss of the benefit of the Equipment to the Lessee under the
Lease or (iv) claims against the Lessor or any Holder arising out of the
transfer (whether voluntary or involuntary) by the Lessor or any Holder (without
the consent of the Lessee, the Lenders and the Agent) of all or any portion of
their respective interests in the Equipment, the Trust Estate or the Operative
Agreements, other than a transfer pursuant to Sections 10, 11, 12, 15 or 22 of
the Lease.
"LIBOR Holder Advance" shall mean each Holder Advance, at such times as
such Holder Advance bears yield at the LIBOR Rate plus .900%.
"LIBOR Loan" shall mean (i) each Loan, at such times as such Loan bears
interest at the LIBOR Rate plus the Applicable Margin, (ii) the Liquidity
Provider's participation in each Loan (at such times as such Loan bears interest
at the LIBOR Rate plus the Applicable Margin) while the Liquidity Provider has
funded amounts outstanding pursuant to the Liquidity Facility with respect to
such Loan and (iii) the amounts extended by a Bank Lender (at such times as such
amounts bear interest at the LIBOR Rate plus the Applicable Margin) to fund the
CP Purchase Price pursuant to Section 8.2(a) of the Participation Agreement.
"LIBOR Rate" shall mean for any Interest Period, Payment Period or
other period of time at which amounts are to bear interest at the LIBOR Rate, as
the case may be, for each LIBOR Loan or LIBOR Holder Advance comprising part of
the same borrowing or advance (including without limitation conversions,
extensions and renewals) the sum of (i) the rate obtained by dividing (a) the
rate at which deposits in dollars are offered to the Agent in the London
Interbank market at approximately 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period, Payment Period or other period of
time at which amounts are to bear interest at the LIBOR Rate, as the case may
be, in an amount approximately equal to the requested LIBOR Loan or LIBOR Holder
Advance, as the case may be, for a period of time approximately equal to
applicable Interest Period, Payment Period or other period of time at which
amounts are to bear interest at the LIBOR Rate, as the case may be, by (b) a
percentage equal to 100% minus the reserve percentage used for determining the
maximum reserve requirement as specified in Regulation D (including without
limitation any marginal, emergency, supplemental, special or other reserves)
that is applicable to the Agent during such Interest Period, Payment Period or
other period of time at which amounts are to bear interest at the LIBOR Rate, as
the case may be,
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in respect of such LIBOR Loan or LIBOR Holder Advance (or if more than one
percentage shall be so applicable, the daily average of such percentage for
those days in such Interest Period, Payment Period or other period of time at
which amounts are to bear interest at the LIBOR Rate, as the case may be, during
which any such percentage shall be applicable), plus (ii) the then daily net
annual assessment rate (rounded upwards if necessary to the nearest 1/100 of 1%)
as estimated by the Agent for determining the current annual assessment payable
by the Agent to the Federal Deposit Insurance Corporation in respect of
eurocurrency or eurodollar funding, lending or liabilities.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever or disposition of title, including but not limited to any conditional
sale or title retention arrangement, any assignment, deposit arrangement or
lease intended as, or having the effect of, security.
"Liquidity Documents" shall mean the Liquidity Facility and the
Liquidity Participation Agreement.
"Liquidity Facility" shall mean the agreement between the Initial
Lender and the Liquidity Provider evidencing the obligation of the Liquidity
Provider to provide liquidity support to the Initial Lender in connection with
the issuance of Commercial Paper by the Initial Lender.
"Liquidity Facility Participant" shall mean each Person acquiring from
the Liquidity Provider a participation interest in the Liquidity Facility
pursuant to the Liquidity Participation Agreement.
"Liquidity Participation Agreement" shall mean the Liquidity
Participation Agreement dated as of the effective date thereof between the
Liquidity Provider and each Bank Lender (other than NationsBank).
"Liquidity Provider" shall mean NationsBank and any Person that
provides liquidity support in favor of the Lenders with respect to the Overall
Transaction.
"Loan" shall mean each loan extended pursuant to the Loan Agreement.
"Loan Agreement" shall mean the Loan and Security Agreement (Coca-Cola
Trust No. 97-1) dated as of the Closing Date among the Owner Trustee, the
Initial Lender and the Agent.
"Loan Agreement Default" shall mean an event which with notice or the
lapse of time or both would become a Loan Agreement Event of Default.
"Loan Agreement Event of Default" shall have the meaning specified in
Section 4.1 of the Loan Agreement.
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"Loan Agreement Investment" shall mean any obligation issued or
guaranteed by the United States or any of its agencies for the payment of which
the full faith and credit of the United States is pledged.
"Loan Basic Rent" shall mean, (i) with respect to any Scheduled Payment
Date, the amount of each Loan scheduled to be repaid on such Scheduled Payment
Date in accordance with Annex 2(a), Annex 2(b) or Annex 2(c), as the case may
be, of the Loan Agreement plus (ii) with respect to any Payment Date, the amount
of interest due on the outstanding Loan on any Payment Date pursuant to the Loan
Agreement and/or any of the Notes (but not including interest on any overdue
amounts).
"LP Rate" shall mean, for each day during an Interest Period or other
period of time at which amounts are to bear interest at the LP Rate, either (i)
as selected by the Lessee (on behalf of the Owner Trustee), the LIBOR Rate plus
the Applicable Margin, the CD Rate plus the Applicable Margin, in each case in
effect two Business Days prior to the first day of such Interest Period or other
period of time at which amounts are to bear interest at the LP Rate or the
Reference Rate, or (ii) if the Agent gives the Owner Trustee and the Lessee
notice that the LIBOR Rate or the CD Rate, as the case may be, cannot be
determined or is unlawful or that any Lender is unable to obtain matching
deposits in the London Interbank market respecting any LIBOR Loan or to match
funds with respect to any CD Loan, the Reference Rate for all Interest Periods
and other periods of time at which amounts are to bear interest at the LP Rate
commencing after the date of such notice and thereafter until the Interest
Period or the other period of time at which amounts are to bear interest at the
LP Rate commencing immediately following the date on which the LIBOR Rate or the
Reference Rate, as the case may be, can be determined, is lawful and as to which
each Lender is able to match fund.
"Majority Holders" shall mean, as of a particular date of
determination, with respect to any action or decision of the Holders, such
Holders retaining more than 51% aggregate of the unpaid Holder Advances, if any,
then outstanding.
"Majority In Interest" shall mean, subject to Section 10.14 of the
Participation Agreement, as of a particular date of determination, with respect
to any action or decision of the holders of the Notes, the holders of more than
51% in aggregate principal unpaid amount of the Notes, if any, then outstanding.
"Majority In Interest of Bank Lenders" shall mean as of a particular
date of determination, with respect to any action or decision of the Bank
Lenders, the Bank Lenders holding or having an obligation to purchase or assume
more than 51% of the right, title and interest in and to and obligations under
the Notes from the Initial Lender pursuant to the terms of Section 8 of the
Participation Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U or Regulation G of the Board of Governors of the Federal Reserve
System as in effect from time to time.
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"Material Adverse Effect" shall mean a material adverse effect on (i)
the business, condition (financial or otherwise), assets, liabilities or
operations of the Lessee and its Subsidiaries taken as a whole, (ii) the ability
of the Lessee or any of its Subsidiaries to perform its respective obligations
under any Operative Agreement to which it is a party, (iii) the validity or
enforceability of any Operative Agreement or the rights and remedies of the
Owner Trustee, the Holders, the Lenders, the Bank Lenders and the Agent
thereunder, (iv) the validity, priority or enforceability of any Lien on or
other rights of the Lessor or the Agent in the Equipment, taken as a whole,
created by any of the Operative Agreements or (v) the value, utility or useful
life of the Equipment or the use, or ability of the Lessee to use, the
Equipment, taken as a whole, for the purpose for which it was intended.
"Maturity Date" shall mean (i) initially, January 15, 2000 with respect
to all Notes and (ii) thereafter, if the Lessee properly elects a Renewal Term
for a particular Class of Equipment as provided in Section 22.3 of the Lease,
the Maturity Date for the corresponding Class of Notes shall be automatically
extended to the last day of such Renewal Term; provided, however, the Maturity
Date for the Class C Notes shall not be extended beyond January 15, 2003, unless
the Bank Lenders have extended the Bank Commitment Expiration Date for a period
at least as long as the extension period for the Class C Notes.
"Maximum Lessee Risk Amount" shall mean for the Equipment described in
each Lease Supplement an amount equal to the percentage set forth in Schedule 2
to such Lease Supplement under the heading "Maximum Lessee Risk Percentage"
multiplied by the Equipment Cost for such Equipment described in such Lease
Supplement, which Maximum Lessee Risk Amount in all cases shall be an amount not
less than the then outstanding principal balance owed with respect to the Notes
under which a portion of the purchase price of the applicable Equipment was
advanced.
"Maximum Lessor Risk Amount" shall mean for the Equipment described in
each Lease Supplement an amount equal to the percentage set forth in Schedule 3
to such Lease Supplement under the heading "Maximum Lessor Risk Percentage"
multiplied by the Equipment Cost for such Equipment described in such Lease
Supplement.
"Maximum Note Commitment Amount" shall have the meaning specified in
Section 8.2(a) of the Participation Agreement.
"Moody's" shall mean Moody's Investor Service, Inc.
"Multiemployer Plan" shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Lessee or any Controlled Group Member has or had an obligation to
contribute.
"NationsBank" shall mean NationsBank, N.A., a national banking
association.
"NBLC" shall mean NationsBanc Leasing Corporation of North Carolina, a
North Carolina corporation.
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"Net Investment" shall mean, for the purposes of the Liquidity Facility
and the Operative Agreements, as of any date of determination, the outstanding
principal amount of the Notes.
"Net Receivables Balance" shall mean, for purposes of the Liquidity
Facility and the Operative Agreements, as of any date of determination, the
aggregate Eligible Receivables.
"New Bank Lender" shall have the meaning specified in Section 8.3(d) of
the Participation Agreement.
"New Bank Lender Rating Requirement" shall have the meaning specified
in Section 8.3(d) of the Participation Agreement.
"Non-Excluded Taxes" shall have the meaning specified in Section 9.2(a)
of the Participation Agreement.
"Non-Renewing Bank Lender" shall have the meaning specified in Section
8.3(d) of the Participation Agreement.
"Notes" shall mean, collectively, each Class A Note, Class B Note and
Class C Note.
"Notice of Delivery" shall have the meaning specified in Section 2.3(b)
of the Participation Agreement.
"Notice of Delivery Elections" shall have the meaning specified in
Section 2.3(d) of the Participation Agreement.
"Odd Lot Amount" shall have the meaning specified in Section 2.2 of the
Loan Agreement.
"Officer's Certificate" shall mean a certificate signed (i) in the case
of a corporation, by the Chairman of the Board of Directors, President, any Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such corporation, (ii) in the case of a partnership, by the
Chairman of the Board of Directors, the President or any Vice President, the
Treasurer or an Assistant Treasurer of a corporate general partner, and (iii) in
the case of a commercial bank or trust company, the Chairman or Vice Chairman of
the Executive Committee or the Treasurer, any Trust Officer, any Vice President,
any Executive or Senior or Second or Assistant Vice President, or any other
officer or assistant officer customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Operative Agreements" shall mean each Notice of Delivery, each
Certificate of Title, the Participation Agreement, the Trust Agreement, the
Certificates, the Loan Agreement, the Notes, the Collateral Agency Agreement,
each Liquidity Participation Agreement, each Assignment
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Agreement, the Lease, each Lease Supplement, each Purchase Agreement Assignment,
each Purchase Agreement and the Fee Letter.
"Optional Modification" shall have the meaning specified in Section 9.2
of the Lease.
"Overall Transaction" shall mean the financing and lease transactions
contemplated by the Operative Agreements, including without limitation the
acquisition by the Owner Trustee of the Equipment in connection therewith.
"Owner Trust" or "Trust" or "Coca-Cola Trust No. 97-1" shall mean the
trust created by the Trust Agreement.
"Owner Trustee" shall mean First Security, not in its individual
capacity, except as expressly provided in the Operative Agreements, but solely
as Owner Trustee under Coca-Cola Trust No. 97-1.
"Owner Trustee Agreements" shall mean the Operative Agreements to which
the Owner Trustee, either in its individual or trust capacity, is or will be a
party.
"Parallel Purchase Commitment" shall mean the following: for the
Interim Term $51,343,000 and for the Basic Term an amount equal to the product
of the principal amount of the Notes multiplied by 102% (rounded upward to the
nearest $1000).
"Participants" shall mean the Lenders and the Holders and with respect
to Sections 9.1, 9.2 and 9.3 of the Participation Agreement, the Liquidity
Provider and each Liquidity Facility Participant.
"Participation Agreement" shall mean the Participation Agreement
(Coca-Cola Trust No. 97-1) dated as of the Closing Date among the Lessee, the
Holders, the Owner Trustee, the Initial Lender, the Bank Lenders and the Agent.
"Parts" shall mean all appliances, parts, components, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature
which may from time to time be incorporated or installed in or attached to a
Unit of Equipment or until replaced, if not so incorporated or installed, in
accordance with the terms of Section 9.3 of the Lease.
"Payment Date" shall mean any Scheduled Payment Date, any Interest
Payment Date and any Yield Payment Date.
"Payment Period" shall mean (i) as to any LIBOR Holder Advance, the
period beginning on the date of such LIBOR Holder Advance and ending one, two,
three or six months thereafter (as selected by the Lessee on behalf of the Owner
Trustee), (ii) as to any ABR Holder Advance based on the Reference Rate, the
period beginning on the date of such ABR Holder Advance and ending on the
maturity date of such ABR Holder Advance (as selected by the Lessee on behalf of
the Owner Trustee) and (iii) as to any ABR Holder Advance based on the CD Rate,
the period
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beginning on the date of such ABR Holder Advance and ending on the
maturity date of such ABR Holder Advance (as selected by the Lessee on behalf of
the Owner Trustee); provided, however, that all of the foregoing provisions
relating to Payment Periods are subject to the following: (x) if any Payment
Period would end on a day which is not a Business Day, such Payment Period shall
be extended to the next succeeding Business Day (except, regarding any LIBOR
Holder Advance, that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (y) no
Payment Period shall extend beyond the Maturity Date or the Expiration Date, as
the case may be, and (z) where a Payment Period for a LIBOR Holder Advance
begins on a day for which there is no numerically corresponding day in the
calendar month in which the Payment Period is to end, such Payment Period shall
end on the last Business Day of such calendar month.
"PBGC" shall mean the Pension Benefit Guaranty Corporation (or any
successor thereto.)
"Pension Plan" shall mean any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Contest" shall mean any contest by the Lessee with respect
to any Permitted Lien or any Taxes incurred with respect to which the Lessee has
provided the Owner Trustee, the Holders, the Lenders and the Agent a legal
opinion from outside counsel to the Lessee (in form and substance reasonably
satisfactory to the Owner Trustee and the Agent) stating in substance that there
is substantial authority for such position, and so long as the Lessee shall
contest, in good faith and at its expense, the existence, the amount or the
validity thereof, the amount of the damages caused thereby, or the extent of its
liability therefor, by appropriate proceedings which shall have no material
likelihood of resulting in (i) the collection of, or other realization upon, the
Lien or the Taxes so contested, (ii) the sale, forfeiture or loss of the
Equipment, or any part thereof, or Rent, or any portion thereof, (iii) any
interference with the use of the Equipment, taken as a whole, or (iv) any
interference with the payment of the Rent, or any portion thereof.
"Permitted Investments" shall mean (i) direct obligations of the United
States of America and agencies thereof for which the full faith and credit of
the United States is pledged, (ii) obligations fully guaranteed by the United
States of America, (iii) certificates of deposit issued by, or bankers
acceptances of, or time deposits with, any bank, trust company or national
banking association incorporated or doing business under the Laws of the United
States of America or one of the States thereof having combined capital and
surplus and retained earnings of at least $500,000,000 (including without
limitation any Lender and the Owner Trustee if such conditions are met) and
having a rating assigned to the long-term unsecured debt of such institutions by
S&P and Moody's at least equal to AA and Aa2, respectively, (iv) commercial
paper of companies, banks, trust companies or national banking associations
incorporated or doing business under the Laws of the United States of America or
one of the States thereof and in each case having a rating assigned to such
commercial paper by S&P or Moody's (or, if neither such organization shall rate
such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) equal to the highest rating
assigned by such organization, and (v) a money market fund registered under the
Investment Company Act of 1940, as amended, the portfolio of which is limited to
the investments described in clauses (i) through (iv) above; provided that if
all
A-25
<PAGE>
of the above investments are unavailable, the entire amount to be invested
may be used to purchase federal funds from an entity described in (iii) above;
and; provided, further, that no investment shall be eligible as a "Permitted
Investment" unless the final maturity or date of return of such investment is 90
days or less from the date of purchase thereof.
"Permitted Liens" shall mean, with respect to the Equipment: (i) the
interests of the Lessee and the Owner Trustee under the Lease and the Lease
Supplement, (ii) the interests of the Lessee and any sublessee as provided in
any sublease permitted pursuant to Section 21 of the Lease, (iii) any Liens
thereon for Taxes not due and payable or the amount or validity of which is
being contested pursuant to a Permitted Contest so long as there exists no
material risk of sale, forfeiture, loss or loss of, or interference with use or
possession of, any Unit or impairment of the interests of the Owner Trustee
therein, criminal sanctions arising therefrom or interference with the payment
of Rent and appropriate reserves with respect thereto are maintained in
accordance with GAAP, (iv) any Liens of mechanics, suppliers, materialmen,
laborers, employees, repairmen and other like Liens arising in the ordinary
course of the Lessee's (or if a sublease is then in effect, any sublessee's)
business securing obligations which are not due and payable or the amount or
validity of which is being contested in good faith at the expense of the Lessee
so long as there exists no material risk of sale, forfeiture, loss, or loss of
or interference with use or possession of any Unit or impairment of the
interests of the Owner Trustee therein or the Lien of the Agent therein, any
criminal sanctions arising therefrom or any interference with the payment of
Rent, (v) the Lien granted to the Agent under and pursuant to the Loan
Agreement, if any, and the respective rights of the Lenders, the Holders and the
Owner Trustee under the Operative Agreements, (vi) Liens arising out of any
judgment or award against the Lessee (or any sublessee permitted pursuant to
Section 21 of the Lease) with respect to which an appeal or proceeding for
review being prosecuted in good faith and for the payment of which adequate
reserves have been provided as required by GAAP or other appropriate provisions
have been made and with respect to which there shall have been secured a stay of
execution pending such appeal or proceeding for review and there exists no
material risk of sale, forfeiture, loss, or loss of or interference with the use
or possession of any Unit or any interest therein or impairment of the interests
of the Owner Trustee therein or the Lien of the Agent therein, any criminal
sanctions arising therefrom or any interference with the payment of Rent, (vii)
salvage rights of insurers under insurance policies maintained pursuant to
Section 12 of each Lease and (viii) other Liens bonded to the reasonable
satisfaction of the Holders and the Lenders.
"Permitted Subleases" shall have the meaning specified in Section 21 of
the Lease.
"Person" shall mean an individual, partnership, corporation, trust,
limited liability company, association or unincorporated organization or any
Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) to which Section 4021 of ERISA applies and (i) which is
maintained for employees of the Lessee or any Controlled Group Member or (ii) to
which the Lessee or any Controlled Group Member made, or was required to make,
contributions at any time within the preceding five years.
A-26
<PAGE>
"Prime Rate" shall mean the per annum rate of interest announced from
time to time by NationsBank as its prime rate. The Prime Rate does not
necessarily represent the lowest or best rate actually charged to any customer.
Any Lender may make commercial loans or other loans at rates of interest at,
above or below the Prime Rate. The Prime Rate shall change automatically and
without notice from time to time and when the prime rate of NationsBank changes.
"Proceeds of Sale" shall mean the amount received by the Lessor from
any Third Party Purchaser of any Unit pursuant to a sale of such Unit to such
Third Party Purchaser in accordance with Sections 10 or 22 of the Lease.
"Program Fee" shall mean the program fee payable in accordance with the
terms and conditions of the Fee Letter.
"Purchase Agreement" shall mean any agreement between any Seller and
the Lessee, or any Affiliate of the Lessee, respecting any of the Equipment.
"Purchase Agreement Assignment" shall mean each Purchase Agreement
Assignment (Coca-Cola Trust No. 97-1), dated as of the applicable Acceptance
Date, among the Lessee, the Lessor and the applicable Seller.
"Recourse Amount" shall have the meaning specified in Section 4.6 of
the Loan Agreement.
"Reference Rate" shall mean, for any day, a fluctuating rate per annum
equal to the greater of (i) the Prime Rate in effect on such day, or (ii) the
Federal Funds Effective Rate in effect on such day plus 0.500%. Any change in
the Reference Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Reference Rate Holder Advance" shall mean each Holder Advance at such
time as such Holder Advance bears yield at the Reference Rate plus 0.500%.
"Reference Rate Loan" shall mean (i) each Loan, at such times as such
Loan bears interest at the Reference Rate, (ii) the Liquidity Provider's
participation in each Loan (at such times as such Loan bears interest at the
Reference Rate) while the Liquidity Provider has funded amounts outstanding
pursuant to the Liquidity Facility with respect to such Loan and (iii) the
amounts extended by a Bank Lender (at such times as such amounts bear interest
at the Reference Rate) to fund the CP Purchase Price pursuant to Section 8.2(a)
of the Participation Agreement.
"Renewal Term" shall mean, with respect to any Unit, any term in
respect of which the Lessee shall have exercised its option to renew the Lease
for such Unit pursuant to Section 22.3 thereof.
"Renewing Lender" shall have the meaning specified in Section 8.3(d) of
the Participation Agreement.
A-27
<PAGE>
"Rent" shall mean, for any Unit, all Basic Rent and Supplemental Rent
therefor.
"Replacement Lenders" shall have the meaning specified in Section
8.3(d) of the Participation Agreement.
"Replacement Unit" shall mean a Unit of Equipment which shall have been
leased under the Lease pursuant to Section 11 thereof.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"Requirement of Law" shall mean, as to any Person, the certificate or
articles of incorporation (or association) and by-laws or other organizational
or governing documents of such Person, and any Law or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Required Modification" shall have the meaning specified in Section 9.1
of the Lease.
"Responsible Officer" shall mean, with respect to the subject matter of
any covenant, agreement or obligation of any party contained in any Operative
Agreement, the Chairman of the Board of Directors, Chief Executive Officer,
Chief Financial Officer, President, any Vice President, Treasurer, Assistant
Treasurer or other officer, who in the normal performance of his operational
responsibility would have knowledge of such matters and the requirements with
respect thereto; provided, however, that with respect to the Owner Trustee, such
terms shall mean any officer of the Owner Trustee in its corporate Trust
Administration who has responsibility for administering the Trust Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Sales Expenses" shall mean (i) all property, excise, sales, transfer
and use taxes and other taxes (as such may be applicable to the sale or transfer
of the Equipment), (ii) all reasonable fees, costs and expenses of such sale or
transfer of the Equipment (including without limitation reasonable fees, costs
and expenses of attorneys or those associated with transportation, storage,
security or insurance) incurred by the Lessor and (iii) any and all other
amounts incurred in connection with such sale or transfer of the Equipment for
which the Lessor would be liable (if not paid) or which (if not paid) would
constitute a Lien on the Equipment or any Unit.
"Scheduled Acceptance Date" shall have the meaning specified in Section
2.6(b) of the Participation Agreement.
"Scheduled Payment Date" shall mean any date set forth on Annexes 2(a),
2(b) and 2(c) of the Loan Agreement and Annexes 2(a), 2(b) and 2(c) of the Trust
Agreement for a scheduled payment of Loans and Holder Advances.
A-28
<PAGE>
"Securities Act" shall mean the Securities Act of 1933 and the
Securities Act of 1934.
"Security" shall have the same meaning specified in Section 2(1) of the
Securities Act.
"Security Documents" shall mean, collectively, the Loan Agreement, the
Lease and each Lease Supplement (to the extent the Lease is construed as a
security instrument) and all other security documents hereafter delivered to the
Agent granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Lessor under the Loan Agreement and/or under
any of the other Operative Agreements or to secure any guarantee of any such
obligations and liabilities.
"Segregated Excepted Property" shall mean Excepted Property referenced
in clauses (i), (iii), (iv) (to the extent relating to proceeds of any liability
insurance policies), (v) and (viii) of the definition of "Excepted Property",
proceeds thereof and the right to institute an action at Law or in equity for
each of the foregoing, all of which shall be payable to the appropriate Persons
(i) in accordance with written instructions furnished to the Lessee by such
Persons, (ii) as otherwise provided in any of the Operative Agreements or (iii)
as required by Law.
"Seller" shall mean each seller conveying good and marketable legal
title in favor of the Lessor with respect to any Equipment or any vendor of any
Equipment identified by the Lessee as a party to whom payment is owed with
respect to such Equipment.
"Severable Modification" shall have the meaning specified in Section
9.2 of the Lease.
"Stipulated Loss Value" shall mean for any Unit as of any date of
determination the amount determined by multiplying the Equipment Cost for such
Unit by the relevant percentage set forth in Schedule 4 to each applicable Lease
Supplement. There shall be one such percentage specification for the Interim
Term, and a table of percentages specified for all subsequent periods.
Stipulated Loss Value as of any date of determination (a) shall not include any
Basic Rent payable on such date and (b) in all cases shall be an amount not less
than the outstanding principal balance owed with respect to the applicable Notes
and the unpaid Holder Advances owed with respect to the applicable Certificates,
in each case evidencing amounts funded with respect to the purchase of the
particular Equipment.
"Storage Period" for any Unit of Equipment shall have the meaning
specified in Section 6.3 of the Lease.
"Subsidiary" shall mean, with respect to any Person, (i) any
corporation of which a majority (by number of shares or number of votes) of any
class of outstanding capital stock normally entitled to vote for the election of
one or more directors (regardless of any contingency which may suspend or dilute
the voting rights of such class) is owned directly or indirectly by such Person
or one or more Subsidiaries and (ii) any limited liability company of which the
members consist solely of the Person or Subsidiaries.
A-29
<PAGE>
"SunTrust Bank, Atlanta" shall mean SunTrust Bank, Atlanta, a Georgia
banking corporation.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee is obligated to pay under the Operative
Agreements to or on behalf of any of the other parties thereto, including
without limitation Stipulated Loss Value and amounts payable pursuant to Section
3.3 of the Lease and Section 2.5 of the Participation Agreement whether such
amounts are stated as the obligations of the Lessee, the Owner Trustee or any
other Person. There shall be no duplication between Basic Rent and Supplemental
Rent.
"Taxes" shall have the meaning specified in Section 7.1(a) of the
Participation Agreement.
"Term" shall mean the Interim Term, the Basic Term and all Renewal
Terms, if any.
"Termination Date" shall have the meaning specified in Section 10.1 of
the Lease.
"Termination Event" shall mean a Loan Agreement Default.
"Third Party Purchaser" shall mean a purchaser of any Unit which is
financially capable of purchasing such Unit, is reasonably acceptable to the
Lessor and is not an Affiliate or Subsidiary of the Lessee.
"Total Equipment Cost" shall mean the aggregate sum of the Equipment
Cost for all Units.
"Tranche End Date" shall have the meaning specified in Section 8.2(a)
of the Participation Agreement.
"Transaction Costs" shall have the meaning specified in Section 2.5(a)
of the Participation Agreement.
"Transfer and Administration Agreement" shall mean, for purposes of the
Liquidity Facility and the Operative Agreements, the Loan Agreement and the
Participation Agreement, collectively.
"Transferee" shall have the meaning specified in Section 6.1(b) of the
Participation Agreement.
"Transferor" shall have the meaning specified in Section 6.1(b) of the
Participation Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial or other court or government body, subdivision, agency, department,
commission, board, bureau of instrumentality of any governmental body.
A-30
<PAGE>
"Trust Agreement" shall mean the Trust Agreement (Coca-Cola Trust No.
97-1) dated as of The Closing Date among the Holders and First Security.
"Trust Estate" shall have the meaning specified in Section 1.01 of the
Trust Agreement.
"Underlying CP Rate" shall have the meaning specified in Section
2.3(d)(ii) of the Participation Agreement.
"Unit" shall mean each unit or item of Equipment.
"United States" shall mean the United States of America.
"Yield Payment Date" shall mean (i) as to any LIBOR Holder Advance, the
last day of the Payment Period or other period of time at which the Holder
Advance is to bear yield at the LIBOR Rate applicable to such LIBOR Holder
Advance; provided, if such Payment Period or other period of time is longer than
three months, yield shall also be payable on the last Business Day of the third
month of such Payment Period or other period of time, (ii) as to any ABR Holder
Advance, July 15, 1997, October 15, 1997, the Interim Term Expiration Date and
each Scheduled Payment Date and (iii) as to all Holder Advances, the date of any
voluntary or involuntary payment, prepayment, return or redemption, and the
Maturity Date or the Expiration Date, as the case may be.
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements as of and for the three months ended March 30, 1997 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-Mos
<FISCAL-YEAR-END> DEC-28-1997
<PERIOD-START> DEC-30-1996
<PERIOD-END> MAR-30-1997
<CASH> 3,557
<SECURITIES> 0
<RECEIVABLES> 47,598
<ALLOWANCES> 405
<INVENTORY> 32,770
<CURRENT-ASSETS> 111,120
<PP&E> 418,595
<DEPRECIATION> 166,615
<TOTAL-ASSETS> 765,334
<CURRENT-LIABILITIES> 68,789
<BONDS> 529,749
<COMMON> 12,055
0
0
<OTHER-SE> (11,775)
<TOTAL-LIABILITY-AND-EQUITY> 765,334
<SALES> 178,395
<TOTAL-REVENUES> 178,395
<CGS> 99,450
<TOTAL-COSTS> 99,450
<OTHER-EXPENSES> 69,249
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,124
<INCOME-PRETAX> 165
<INCOME-TAX> 61
<INCOME-CONTINUING> 104
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 104
<EPS-PRIMARY> 0.01
<EPS-DILUTED> 0
</TABLE>
